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North Carolina Attorney General reports

Biennial report of the Attorney-General of the State of North Carolina

BIENNIAL HEP
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BIENNIAL REPORT
OF THE
ATTORNEY GENERAL
OF THE
State of North Carolina
VOLUME 37
1962-64
THOMAS WADE BRUTON
ATTORNEY GENERAL
Harry W. McGalliard
Peyton B. Abbott
Ralph Moody
Deputy Attorneys General
Lucius W. Pullen*
Harrison Lewis
G. Andrew Jones, Jr.*
Charles D. Barham, Jr.
Charles W. Barbee, Jr.
James F. Bullock
Ray B. Brady
Richard T. Sanders
Assistant Attorneys General
Resigned
LETTER OF TRANSMITTAL
1 January 1965
To His Excellency
Dan K. Moore, Governor
Raleigh, North Carolina
Dear Sir:
In compliance with Article III, Section 7 of the Constitution, I herewith
submit the report of the Department of Justice for the biennium 1962-64.
Respectfully yours,
Thomas Wade Bruton,
Attorney General
6
LIST OF ATTORNEYS GENERAL SINCE THE
ADOPTION OF CONSTITUTION IN 1776
Term of
Office
Avery, WaightsJll 1776-1779
Iredell, James 1779-1782
Moore, Alfred 1782-1790
Haywood, J. John 1791-1794
Baker, Blake 1794-1803
Seawell, Henry 1803-1808
Fitts, Oliver 1808-1810
Miller, William 1810-1810
Burton, Hutchins G 1810-1816
Drew, William 1816-1825
Taylor, James F 1825-1828
Jones, Robert H 1828-1828
Saunders, Romulus M 1828-1834
Daniel, John R. J 1834-1840
McQueen, Hugh 1840-1842
Whitaker, Spier 1842-1846
Stanly, Edward 1846-1848
Moore, Bartholomew F 1848-1851
Eaton, William 1851-1852
Ransom, Matt W 1852-1855
Batchelor, Joseph B 1855-1856
Bailey, William H 1856-1856
Jenkins, William A 1856-1862
Rogers, Sion H 1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M 1870-1872
Hargrove, Tazewell L 1872-1876
Kenan, Thomas S 1876-1884
Davidson, Theodore F 1884-1892
Osborne, Frank 1 1892-1896
Walser, Zeb V 1896-1900
Douglas, Robert D 1900-1901
Gilmer, Robert D 1901-1908
Bickett, T. W 1909-1916
Manning, James S 1917-1925
Brummitt, Dennis G 1925-1935
Seawell, A. A. F 1935-1938
McMullan, Harry 1938-1955
Rodman, William B., Jr 1955-1956
Patton, George B 1956-1958
Seawell, Malcolm B 1958-1960
Bruton, Thomas Wade 1960-
^0
EXHIBIT I
Civil Actions Pending in State and Federal Courts
During the Biennium 1962-64
. Number of
Cases
Pending in the Superior Court of North Carolina
State Taxes 55
Motor Vehicle Drivers' Licenses 55
Condemnation Proceedings 1,374
Utilities Commission Cases 8
Beer and Wine License Revocations 15
Other 46
TOTAL 1,553
Pending in the Supreme Court of North Carolina
State Taxes 2
Other 18
TOTAL 20
Pending in the United States District Courts
State Taxes 2
Other 24
TOTAL 26
. Pending in the United States Supreme Court
Other 1
Civil Cases Disposed of During the Biennium 1962-64
In the Superior Court of North Carolina 792
In the Supreme Court of North Carolina 33
In the Supreme Court of the United States 7
In the District Courts of the United States 113
Before the North Carolina Industrial Commission 167
Habeas Corpus Petitions Disposed of in the
Superior Court 412
Habeas Corpus Petitions Disposed of in the Federal
District Court 210
TOTAL 1,734
BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
EXHIBIT II
Criminal Cases Disposed of in the North Carolina Supreme
Court During the Biennium 1962-64
:
Abandonment-Nonsupport 3
Assault 3
Assault with Deadly Weapon 5
Assault with Intent to Rape 3
Breaking-Entering-Larcency-Receiving 9
Carnal Knowledge 1
Crime Against Nature 3
Conspiracy 3
Damage to Real Property 1
Embezzlement . . . 1
False Pretense 2
Forgery 5
Gambling 1
Incest 1
License Violation 1
Manslaughter 12
Murder First Degree 4
Murder Second Degree 2
Peeping Into Room Occupied by Woman 1
Perjury 2
Prostitution 1
Public Drunkeness 2
Rape 2
Robbery 8
Trespass 5
Unlawful Practice of Law 1
Violating City Ordinance 1
Violating Liquor Laws 6
Violating Motor Vehicle Laws 3
Violating Rules of the Road 11
Violating Security Act 1
Violating Suspended Sentence 3
Worthless Check 2
TOTAL . .109
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7
Number of Cases dismissed on motion during the
Biennium 1962-64 4
Number of Petitions for Stay of Judgment denied
during the Biennium 1962-64 3
Number of Petitions for Writ of Certiorari denied
during the Biennium 1962-64 146
Number of Petitions for Writ of Certiorari
allowed during the Biennium 1962-64 18
Number of Petitions for Writ of Error Coram Nobis
denied during the Biennium 1962-64 2
Number of Petitions for Writ of Habeas Corpus
denied during the Biennium 1962-64 12
Number of Petitions for Writ of Mandamus
denied during the Biennium 1962-64 7
Fees Transmitted by the Attorney General to the
State Treasurer During the Biennium 1962-64 . . $485.00
8 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
SUMMARY OF ACTIVITIES
Staff Personnel
There have been very few changes in the staff personnel since the
publication of the Biennial Report of 1960-62, although there has been an
increase in personnel.
Attorney General T. W. Bruton, Deputy Attorneys General Harry W.
McGalliard, Peyton B. Abbott and Ralph Moody, and Assistant Attorneys
General Harrison Lewis, Charles D. Barham, Jr., Charles W. Barbee, Jr.,
and James F. Bullock served throughout the biennium. In addition to those
serving throughout the biennium Assistant Attorneys General Ray B.
Brady and Richard T. Sanders were serving at the close of the biennium.
Harold Lee Waters was serving as Revisor of Statutes at the close of
the biennium.
Staff Attorneys who were serving at the close of the biennium w^ere as
follows: Parks H. Icenhovir, William R. Pierce, George A. Goodwyn, Ralph
M. Potter, Theodore C. Brown, Jr., John W. Twisdale, William B. Ray,
Samuel M. Booth, T. Buie Costen, Claude W. Harris, I. B. Hudson, Jr.,
Andrew H. McDaniel, William W. Melvin, William W. Merriman, III,
Millard R. Rich, Jr., Henry T. Rosser, Eugene A. Smith, Robert S.
Weathers, Thomas B. Wood, and William F. Briley.
Members of the secretarial staff who were serving at the close of the
biennium are as follows: Miss Elizabeth N. Flournoy, Mrs. Jean C. Spence,
Miss Aida Epps, Mrs. Frances E. Gill, Mrs. Carolyn D'Alio, Mrs. Katharine
L. Dowd, Mrs. Cleo A. Purcell, Miss Judith K. Edwards, Mrs. Alice Gorham,
Mrs. Edna B. Jerome, Mrs. Helen W. Bagwell, Mrs. Barbara C. Owens,
Mrs. Blondell Johnson, Mrs. Ruby Rickm.an, Mrs. Grace Gardner, Mrs.
Mary H. Green, Mrs. Margaret P. Roberts, Mrs. Priscilla G. Sandy, Miss
Shirley J. White, Mrs. Betty Y. Jeffreys, Mrs. Marilyn Lee, Miss Judy A.
Underwood, Miss Carolyn R. Kearney, Mrs. Barbara H. Tucker, Miss
Marie McLaurin, Mrs. Frances C Regan, Mrs. Jeanne M. Whitten, Mrs.
Brenda M. Johnson, and Mrs. Colleen G. Hinton, Budget Officer.
Highway Division of Attorney General's Office
During the past biennium, the Attorney General, in the discharge of his
responsibilities to represent the State Highway Commission, its Chairman
and Director, has handled a work load of more than double the volume
handled during the previous biennium. This volume is due in part to the
expanded highway program, including the construction of the Interstate
Highway System, and in part is due to the condemnation procedure enacted
by the 1959 session of the General Assembly, effective July 1, 1960, under
which the Commission is required to institute condemnation actions in the
Superior Court on those matters which have not been settled prior to the
letting of the contract for construction.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9"
At the close of the previous biennium, five hundred ninety-one (591)
suits were pending. During the biennium, one thousand one hundred forty-one
(1,141) new suits were instituted against or by the Highway Commis-sion,
six hundred twenty (620) were disposed of, one hundred forty-six
(146) of which were terminated by jury trials in the Superior Court. The
balance were settled either prior to or during trial. One thousand three
hundred seventy-four (1,374) condemnation and related cases are pending
as of the close of the biennium.
The State Highway Commission has been represented in the Supreme
Court in fifteen (15) cases during the period by members of this staff. At
the conclusion of the biennium, there are five (5) cases involving the State
Highway Commission pending in the Supreme Court. During the latter
part of the biennium, the number of cases opened and disposed of have
been about equal and it is anticipated that during the succeeding biennium
this trend will continue due to an increase in the staff of this division.
During the biennium, the members of this staff participated with the
administrative personnel of the Highway Commission in the determination
of a large number of claims brought by highway contractors arising out
of the contract work carried on by the Commission. Under a 1963 statute,
these claims are now being determined in Superior Court in a civil action
rather than before an administrative board of review, and it is anticipated
that a more efficient disposition of these claims can now be made. The staff
has also represented the Commission in the adjustment of claims for dam-age
to Commission property and other miscellaneous matters.
In addition, members of the staff have drafted, reviewed or approved
approximately fifteen thousand (15,000) leases, deeds, right-of-way claims,
encroachment contracts, miscellaneous agreements with utilities, railroads,
municipalities and other governmental agencies, and construction contracts.
Throughout the biennium, the staff has had the very complete cooperation
of the State Highway Commission, its Chairman, Director and administra-tion
in the prosecution of the Attorney General's work for the State
Highway Commission.
Tort Claims and Workmen's Compensation
The State Tort Claims Act, which was enacted in 1951, imposed upon
the Attorney General the duty of representing the various State depart-ments,
institutions and agencies, with the exception of the State Highway
and Public Works Commission. In 1957, when the Highway and Public
Works Commission was separated by the General Assembly, the Attorney
General assumed the duty of representing this department in like manner.
During the biennium from July 1, 1962, to July 1, 1964, a total of 773
tort claims were filed against the various departments, institutions and
agencies of the State. Approximately 50% of this number were handled by
the Attorney General. About one-half of these were settled, and the re-mainder
were heard before the North Carolina Industrial Commission, as
provided by law.
10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
In 1959, the General Assembly enacted a statute requiring all depart-ments,
institutions and agencies of the State to acquire liability insurance
on all State-owned motor vehicles. (Chapter 1248, Session Law, 1959).
The effective date of this Act was July 1, 1959.
As a result of this Act an undetermined number of tort claims against
the State, in which State-owned motor vehicles were involved, were settled
by the insurance carrier for the various departments, institutions, and
agencies during the second half of the biennium.
In addition to its duty of representing the various departments, institu-tions
and agencies of the State in claims filed under the Tort Claims Act,
the Attorney General represents the State in disputed Workmen's Com-pensation
claims filed by State employees. During the past biennium
approximately 359 disputed claims involving State employees were heard
by the Commission.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11
DIGEST OF OPINIONS
AGRICULTURE
7 September 1962
Agriculture; Agricultural Fairs; Circuses; Conflicts in Dates
A circus does not come within the purview of G.S. 106-516.1, which
prohibits the exhibition of carnivals or shows "of like kind" within 30 days
prior to a regularly advertised agricultural fair. Circus performances as
they relate to conflicts in dates with agricultural fairs are governed by
G.S. 106-519 and G.S. 105-38.
12 August 1963
Agriculture; Checked and Producer Eggs
A check or cracked egg is not a "fresh" egg so as to satisfy the require-ments
for a Grade A egg, nor can a producer egg go through a segregation
procedure and be labelled as an "ungraded" egg.
4 October 1963
Agriculture, Dept. of; Dairy Laws, Minimum Standards in Grading
and Testing of Milk and Dairy Products; Definition of Milk
Misbranding
The minimum standards of the Board of Agriculture as to the butterfat
content of milk, skimmed milk and chocolate milk are controlling through-out
the State; local boards of health may adopt more stringent regulations
in regard to such content but such regulations should not conflict with the
Board of Agriculture's minimum standards; a milk container having
printed on it "chocolate milk" and under this the word "skimmed" is mis-branded
for the reason that in this particular case the standard as to
butterfat was anything less than 3^/4%, whereas the standard of the Board
of Agriculture is not more than 1% butterfat.
10 December 1963
Agriculture; Egg Law; Egg Distributors; Failure to Obtain
Distributor's Permit
The Department of Agriculture has the right and authority under the
law to stop the sale of a distributor's eggs on the market when such dis-tributor
has not secured a distributor's certificate as required by G.S.
106-245.3, and any distributor who violates this statute shall be found
guilty of a misdemeanor and upon conviction shall be fined not more than
fifty dollars or imprisoned not more than thirty days.
12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
6 February 1964
Agriculture; Unfair Practices by Handlers of Farm Products,
Poultry and Eggs
G. S. 106-496, relating to unfair practices by handlers of farm products,
would include the handling of poultry and eggs.
ABC ACT
24 August 1962
ABC Act; Closing of ABC Stores for County Bond Election
All ABC stores are required to be closed on election day in a county hold-ing
a county-wide special bond election.
18 June 1963
ABC Act; County ABC Board Selling Surplus Personal Property
No statutory authority for county ABC Board to dispose of personal
property by sale or otherwise and no statutory procedure is provided for
the sale of its personal property. Nevertheless, it is felt that county ABC
Boards have implied authority to dispose of surplus, obsolete, or unused
property by public auction or upon sealed bids after due advertisement.
20 June 1963
ABC Act; Elections; Municipal ABC Election by Special Act;
Beer and Wine Election
A county or municipal election on the question of legal sale of beer or
wine or both may not be held on the same date of a special liquor election
in a municipality, or within 60 days of any general, special or primary
election in the county or any municipality therein, until after July 1, 1963.
G. S. 18-124 (f ) specifies what conditions must be met in order for a beer
and/or wine election to be held on the same date as an election for ABC
stores.
9 September 1963
ABC Act; Municipalities; No Authority to Call Liquor Election
Without Enabling Act
There is no general law authorizing a municipality to call a liquor elec-tion
either with or without a petition.
.37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13
31 August 1962
ABC Act; Wholesaler of Malt Beverages; Wholesaler License
A person, firm or corporation that sells the beverages enumerated in
G. S. 18-64 (a), in barrels, bottles or other containers, in quantities of not
less than one case or container to a customer for resale, is a wholesaler
and subject to a wholesaler's license as provided in the Beverage Control
Act.
ABC BOARD
18 May 1964
ABC Board; Authority of County Board to Erect a Building for
Purposes of Selling and Storing Alcoholic Beverages
G. S. 18-45(8) grants to the county ABC Boards the implied power to
erect and construct buildings on land purchased by the said county ABC
Boards for the purposes of selling and storing alcoholic beverages.
29 April 1964
ABC Board; Authority of Local Board to Make Donation to Subsidize
A Jitney Bus Operation
A local ABC board may not appropriate funds to subsidize a jitney bus
operation in the vicinity of an ABC store.
ALCOHOLIC BEVERAGES
28 August 1963
Alcoholic Beverages,- Beer and Wine; Transporting Beer in
Taxicab, Delivery Truck; Possession, prima facie Rule for Sale
There is no statutory limit upon the quantity of beverages, enumerated
in G.S. 18-64, which an individual may purchase, transport and possess.
However, possession of more than five gallons of beer (15^/^ gallons of
draft beer in wet area) raises a presumption that it is for purpose of sale.
G.S. 18-32.
Any vehicle transporting such beverages on the public highways must
comply with G.S. 18-66 as to registration, certificate for transportation,
etc., except when the transporting is by an individual for his own use.
29 November 1962
Alcoholic Beverages; Municipal Police Officers; Arrest of
Violators Outside Municipal Limits
A municipal police officer in hot pursuit of a person found to be violating
14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
the liquor laws of this State may pursue such violator beyond the municipal
limits and arrest the violator. G.S. 18-45 (o).
25 June 1964
Alcoholic Beverages; Private Lockers in Club Located in Dry County
It is illegal under any and all circumstances to keep alcoholic beverages
in a private locker at a clubhouse in a dry county.
30 November 1962
Alcoholic Beverages; Sales on Airplanes Operating Over Routes
Crossing State of North Carolina
With the exception of beer and wine, with not more than 14% of alcohol
content sold by a licensed retailer, no alcoholic beverage of any kind may
be sold in any aircraft passing over or through the State of North Carolina.
ARCHIVES AND HISTORY
23 October 1963
Archives and History, Dept. of; State Capitol Building;
Placement of Bronze Plaques
The disposal of surplus property by State agencies and departments is
under the control of the Department of Administration.
BANKS, BANKING
6 August 1962
Banks; Excise Taxes; Deduction; Amortization op Bond Premiums
Not Deductible
No annual deduction for amortization of bond premium is allowable in
computing income taxes due under Article 4, Chapter 105 of the General
Statutes, nor is any annual deduction for amortization of bond premium
allowable in computing the excise tax on banks provided by Article 8C,
Chapter 105 of the General Statutes, regardless of the purpose for which
the bonds are held.
2 December 1963
Banks; Inactive Accounts; Escheats; Service Charges
The right of a bank to make service charges with respect to a depositor's
account is dependent upon the bank's contractual relationship with the
depositor.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15
17 February 1964
Banks; Incorporation of an Existing Statute into Another Statute
BY Descriptive Reference; Authority of State Banks to Issue Capital
Notes or Debentures
State banking corporations are authorized under the banking laws of this
State to issue capital notes or debentures under regulations prescribed by
the Banking Commission and supervised and administered by the Commis-sioner
of Banks.
2 October 1963
Banks; National Banks; Trust Departments; No Supervision by State
Commissioner
The North Carolina State Department of Banks does not have any super-visory
pow^ers with respect to trust accounts of national banks.
25 June 1964
Banks; Sale of Checks and Money Orders
Any person, firm or corporation other than a bank may not engage in the
business of selling money orders or checks unless duly licensed by the Com-missioner
of Banks to engage in this special business.
22 August 1963
Banks; Small Loan Act; Consumer Finance Act; 1963 Insurance
Premium Financing Act; Construction of Certain Provisions
(1) A licensee under the Consumer Finance Act may engage in the busi-ness
of acquiring insurance premium finance agreements from insurance
premium finance companies and may carry on such business in the same
place as its lending business because G. S. 53-172 specifically exempts install-ment
paper dealing from its prohibition against carrying on additional
types of business in a loan office.
(2) If the same corporaton is licensed both under the Consumer Finance
Act and the Insurance Premium Financing Act and attempts to operate
pursuant to the Insurance Premium Financing Act, such premium financ-ing
business could not, because of G. S. 53-172, be carried on in the same
office as the lending business.
6 March 1963
Banks; What Constitutes Banking; Money Order Services;
Travelers Checks
It would violate the State banking laws for any person or firm other than
a duly chartered bank to operate a money order or travelers check service.
16 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
BIDS; BIDDING
8 November 1963
Bids; Bidding; Counties; Public Bidding Statutes; Rejection of
Lowest Bid
In considering bids for motor vehicles which meet all specifications, a
county has no authority to reject the lowest bid unless it determines that
the agency submitting the lowest bid was not responsible, taking into con-sideration
quality, performance and the time specified in the proposals for
the performance of the contract.
2 October 1962
Bids; Bidding; Public Bidding; Medical Care Commission;
"Lowest Responsible Bidder"
In determining "the lowest responsible bidder" for public bidding pur-poses
under G. S. 143-129, a discount for payment within a limited period
offered by a bidder should be taken into account.
BONDS, BONDSMEN
3 January 1964
Bonds; Bondsmen; Runners; Commissioner of Insurance; Regulation
OF Rates and Charges
The Commissioner of Insurance has no authority under Chapter 85A of
the General Statutes of North Carolina to promulgate rating schedules or
to regulate the charges which professional bondsmen and property bonds-men
make for their services.
18 December 1962
Bonds; Clerk of Court; Statement of Conditions; Cancellation Clause
Bond of Clerk of Superior Court must be conditioned upon requirements
set forth in G. S. 2-3 ; G. S. 109-3 requires such bond to be for term of office,
therefore non-cancellable.
BUSINESS AND COMMERCE
2 December 1963
Business and Commerce; Debt Adjustment Services;
Prohibited by Statute
Engaging in the business of carrying on a debt adjustment, debt con-solidation
and debt payment service for individuals was made unlawful by
Chapter 394 of the Session Laws of 1963.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL IT
CEMETERIES
13 September 1962
Cemeteries; Church Cemeteries; Extension of Church Building
Over Abandoned Cemetery
A church may not enlarge its church buildings to cover an abandoned
cemetery without first giving the statutory notice and removing the graves
as provided by Section 65-13 of the General Statutes.
24 April 1963
Cemeteries; Removal of Grave in City Cemetery by City
A municipality w^ould not be performing a governmental function in open-ing
a privately-owned grave in a city cemetery for the purpose of removing
the remains to another grave in said cemetery.
CITIZENSHIP
28 November 1962
Citizenship; Conviction of a Crime in Another State; Effect
This office has always taken the view that the North Carolina Constitu-tional
provisions as to loss of citizenship for commission of crime apply only
to convictions for violation of statutes of this State.
' 27 May 1963
Citizenship; Pardon; Effect on Right to Vote and Hold Elective
Office
A person who has been convicted of a felony is disqualified as a voter
and is not eligible to hold public office, under Article VI, Sections 1, 2, 7
and 8 of the North Carolina Constitution, until his citizenship has been
restored as provided in Chapter 13 of the General Statutes. The fact that
a disqualified person was pardoned by the Governor after such person's
election, but prior to taking the oath of office, does not eliminate the neces-sity
of having citizenship restored by the statutory procedure. A pardon
does not ipso facto restore citizenship in North Carolina. One disqualified
to hold office as of the date of his apparent election is not automatically
entitled to hold such office by subsequent restoration of citizenship.
7 August 1963
Citizenship; Restoration of Citizenship After Conviction of Felony;
Effect of Parole; Time of Application
A parolee cannot apply for restoration of citizenship under Chapter 13
of the General Statutes until the applicant has been discharged from
parole.
18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
4 February 1963
Citizenship; Right of Person Convicted of Federal Offense to
Hold County Office
Conviction of a North Carolina citizen of a felony in a Federal court does
not cause such person to lose his North Carolina citizenship.
CIVIL DEFENSE
10 January 1964
Civil Defense; Authority to Use School Buildings and Other Facili-ties
Without the Specific Consent of the Appropriate County Board
OF Education
The County Commissioners of a particular county may authorize the use
of school buildings and other facilities for Civil Defense purposes during
an emergency as defined by Chapter 166 of the North Carolina General
Statutes, even though no specific consent has been granted by the County
Board of Education.
28 April 1964
Civil Defense; Workmen's Compensation for Volunteer
Civil Defense Workers
A volunteer Civil Defense w^orker, who is not otherwise an employee of
the State government, or a local governmental unit, who performs his
services in a duly authorized Civil Defense exercise or training period so
as to better the Civil Defense readiness, would not be allowed to receive
workmen's compensation benefits in the event said volunteer Civil Defense
worker is injured or killed while performing such authorized duties.
CIVIL PROCEDURE
8 May 1963
Civil Procedure; Service of Civil Summons on Sundays
Section 103-3 of the General Statutes make it lawful to serve a civil
summons on Sunday.
29 April 1963
Civil Procedure; Waiver of Personal Appearance
Court officials and law enforcement officers are not permitted to waive
appearance of defendants; to be allowed to waive appearance, there must
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19
be a warrant issued and served and appearance personally waived in writ-ing
by defendant or through his counsel; the case should be properly
docketed, evidence heard and judgment rendered.
CONSTITUTIONAL LAW
15 February 1964
CONSTITUTIONAL LAW; MUNICIPAL CORPORATIONS; VALIDITY OF ORDINANCE
OF Chapel Hill Regulating Picketing
The Chapel Hill Ordinance regulating the time, place and manner of
picketing is a valid regulation of the use of the streets of the Town under
authority delegated to the Board of Aldermen by the General Assembly;
the ordinance does not violate freedom of speech and assembly as guaran-teed
by the First Amendment and made applicable to the States through
the Fourteenth Amendment; the Ordinance is neutral and does not dis-criminate
against persons or groups because of race, color or creed; the
ordinance does not violate the Equal Protection Clause or the Due Process
Clause of the Fourteenth Amendment.
17 February 1964
Constitutional Law; Religion and Public Education; Prayer in Public
Schools; Prayer on a Voluntary Basis
The reading of the Bible and recitation of prayers in the public schools
can be properly engaged in on a voluntary basis. It would be constitu-tionally
invalid if such reading of the Bible and saying of prayers were
by order of a school board or other State agency.
CONTRACTS
3 June 1963
Contracts; Insurance; Validity of Certified Copy of General
Power of Attorney
Opinion given that a certified copy of the General Power of Attorney
issued in conjunction with a guaranty contract by an insurance company
is valid and binding upon the insurance company if the corporate seal is
attached thereto, citing G. S. 55-36 (c) and (d).
12 September 1962
Contracts; Lease; Execution
A lease for a term of years complies with G. S. 22-2 if in writing and
signed by the party to be charged thereunder, and is not governed by re-quirements
of law for conveyance of real property.
20 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
CORPORATIONS
28 February 1964
Corporations; Foreign; Doing Business; Pension Trusts;
Banking Institutions
A corporation organized under the laws of another state and engaged
in the banking and trust business cannot qualify to do business in North
Carolina. Therefore, such foreign banking institution, as trustee under a
trust indenture, could not purchase real property in this State under a plan
whereby the bank would immediately after purchase lease back the prop-erty
to the seller under a long term lease agreement.
COUNTIES
20 July 1962
Counties ; Building and Plumbing Inspectors ; Agreement Between
County and Municipalities; N. C. Building Code
A Board of County Commissioners may enter into contracts with munici-palities
within the county to support a joint Building Inspection Depart-ment.
25 September 1963
Counties; Community Colleges; Authority of County Commissioners
TO Convey Surplus County Property to Community College
A county owning surplus real property has the authority to convey such
surplus real estate to a community college located in the county since such
conveyance is supported by valid consideration in discharge of the county's
legal duty to furnish real estate as a capital outlay item in the local budget
for such college; such conveyance also is for a public purpose and is a
transfer from one county governmental unit to another governmental unit.
17 September 1962
Counties; Condemnation; Authority to Condemn Property for County
Buildings
Boards of county commissioners are possessed only with those powers
which have been expressly conferred or which are necessarily implied for
the proper exercise of the duties imposed upon them and may not exercise
the power of condemnation unless expressly conferred by the Legislature,
or the power of condemnation is necessarily inferred from the particular
act involved.
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 21
10 March 1964
Counties; County Commissioners; Authority to Request County Board
OF Elections to Hold Supplemental School Tax Election; Public
Schools; Items for which Supplemental Tax may be Used
Elections for the purpose of determining the question of a supplemental
school tax can be held in each school district in a county, and where the
school district lines coincide with the township lines a reference to such
fact in a petition is a sufficient description; where the petition uses the
words of a statute in designating the objects of expenditure for such
supplemental tax, this is sufficient designation of the objects; in the absence
of an authorizing statute the board of county commissioners should hold
the election on the question of the approval of a supplemental tax.
27 February 1963
Counties; County Commissioners; Chairman of a Public Board;
Authority of the Chairman to Vote a Second Time to Break a Tie
There is no statutory authority which authorizes the chairman of a board
of county commissioners to cast the deciding vote in case of a tie after
he has already voted as a member of the board. In the absence of a rule
which provides for double voting, the chairman of a board of county com-missioners
is entitled to vote as a member of the board and is not entitled
to vote a second time to break a tie. See MARKHAM v. SIMPSON, 175
N. C. 135, and STATE v. LONG, 186 N. C. 516.
26 July 1962
Counties; County Finance Act; Bond Ordinance; Proceeds of Bonds
It is not necessary that a bond ordinance state in detail the use to which
the proceeds will be put so long as the proceeds are used in furtherance of
the general purpose set out in the bond ordinance.
14 November 1963
Counties; County Office Building; Authority to Construct
OR Acquire
A county has authority to acquire, purchase and construct a county
office building to house offices, departments, bureaus and agencies of the
county government.
23 August 1962
Counties; County Planning Boards; Water Resources;
Ground Water Survey
Expenditure of funds for county planning purposes pursuant to G. S.
153-9 (40) is a necessary expense in the constitiitional sense.
22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
26 February 1964
Counties; Director of Public Trust Contracting for His Own Benefit;
Account in Bank of which One of County Commissioners is
Vice-President
G. S. 14-234 exempts public officials transacting business with a bank
from its provisions and the county may maintain a checking account in a
bank where one of the commissioners is vice-president.
20 June 1963
Counties; Expenditure of Funds; Appropriation to Develop Private
Property
A county has no authority to expend public funds to develop private
property.
7 December 1962
Counties; Expenditure of Funds: Public Purpose; Construction of
Building to be Sold to Veterinarian
A county does not have authority to use public funds to build a building
for a private individual and then sell the same to the private individual
on a time basis.
. . 26 September 1962
Counties; Insurance; Authority to Purchase Insurance in Mutual
Insurance Companies
Counties, municipalities, and boards of education may purchase insur-ance
in mutual insurance companies.
8 May 1963
Counties; Insurance; Group Life and Hospital Insurance
A county has authority to pay premiums for group life insurance and
hospital and medical insurance for county employees, and the providing of
such a "fringe" benefit really amounts to a salary supplement to the
extent of the amount of the premium involved.
31 July 1963
Counties; Municipalities; Water Supply; No Authority in County to
Compel Fluoridation
A board of county commissioners has no authority to compel a munici-pality
to fluoridate it§ water supply.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23
2 December 1963
Counties; Municipalities; Water and Sewage Services; Joint Projects
Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment
of water and sewer lines jointly by towns and any county to
industrial plant sites located outside the municipal limits of a town.
18 December 1962
Counties; Necessary Expense; Use of Tax Money for County Audi-torium;
Bond Issue; Use of Nontax Funds for Preliminary Expenses
Establishment of a public auditorium by a county is for a public pur-pose,
but expenditures therefor are not necessary expenses; non-tax funds
may be used for preliminary expense, but approving vote of people is
necessary before issuing bonds or levying taxes to pay therefor.
8 November 1963
Counties; Public Bidding Statutes; Rejection of Lowest Bid
In considering bids for motor vehicles which meet all specifications, a
county has no authority to reject the lowest bid unless it determines that
the agency submitting the lowest bid was not responsible, taking into con-sideration
quality, performance and the time specified in the proposals for
the performance of the contract.
30 October 1963
Counties; Water and Sewer Systems; Acquisition of Right of Way
The statutory right of a county to acquire and maintain water and sewer
systems includes the authority to acquire the necessary rights of way there-for.
COURTS
18 March 1963
Courts; Costs; City Police Officers; Witness Fees
Under the general law, G. S. 6-52, a law enforcement officer who is on a
salary basis is not entitled to witness fees for attending court with respect
to cases with which he is officially connected.
2 November 1962
Courts; Costs; Liability of County in Criminal Actions
Trial judges should determine insolvency of convicted defendant before
county liability for pajrment of costs arises under G. S. 6-36.
24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
27 August 1962
Courts; Domestic Relations Courts; Disclosure of Confidential
Information; Court Costs
An attorney representing a child or children in the Domestic Relations
Court has the legal right to read and examine the court summary and also
the case worker's or probation officer's report and any other information of
a confidential nature if the same have been made available to the judge
of the court. But a Judge of the Domestic Relations Court has no discretion
to reduce the amount of costs, except in cases where the amount of cost is
strictly a matter of law.
30 November 1962
Courts; Witnesses; Attendance at Criminal Terms;
Re-issuing Subpoenas
The effect of G. S. 7-73.1 as to attendance of witnesses at succeeding
terms of criminal courts is to repeal the effect of G. S. 8-63, in that wit-nesses
are no longer required to continue attending from term to term until
dismissed when a case has been once continued, but are to be re-subpoenaed
for a day certain at the next term when the trial is scheduled.
CRIMINAL LAW
3 October 1963
Criminal Law; Embezzlement; Borrowed Goods; Leased Goods;
Mortgages and Deeds of Trust; Sale of Mortgaged Property
If a person borrows or leases personal property from another and sells
it without permission, he is guilty of embezzlement.
26 September 1962
Criminal Law; Evidence Obtained Without Valid Search Warrant
Evidence obtained through use of an invalid search warrant is inad-missible.
10 August 1962
Criminal Law; Marriage Laws; Bigamous Marriages
In North Carolina a bigamous marriage is not voidable but void.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25
7 February 1964
Criminal Law; Murder; Time of Death; Lapse of More Than a Year
AND A Day
In this State a person may not be convicted of murder when the fatal
wound was inflicted more than a year and a day before death occurred.
10 October 1962
Criminal Law; Procedure; Evidence Obtained With Valid
Search Warrant
Evidence obtained as a result of a search made pursuant to a proper
search warrant signed by a Mayor Pro Tern during the illness or absence
of the Mayor would be competent and admissible.
11 July 1962
Criminal Law; Public Drunkenness; Hotel Lobby
A hotel lobby is a public place within the meaning of the statutes pro-hibiting
drunkenness in a public place.
2 July 1962
Criminal Law; Pyrotechnics; Explosives; "Amateur Rocketry"
North Carolina does not have any statutes which are designed to encour-age
"amateur rocketry".
9 December 1963
Criminal Law; Pyrotechnics; Sparklers
"Sparklers" are considered pyrotechnics within the meaning of the law
in this State prohibiting the sale, exhibition or possession of fireworks.
28 August 1962
Criminal Law; Selling Cigarettes to Certain Minors
It is unlawful in this State to sell or give cigarettes or tobacco in any
form to a minor under the age of seventeen.
20 August 1962
Criminal Law; Worthless Check; Stopping Payment
The mere stopping payment on a check that has been issued, when there
are at all times adequate funds in the bank to cover it, does not constitute
a violation of the worthless check law.
26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
CRIMINAL PROCEDURES
22 August 1963
Criminal Procedure; Appeals by State; Not Allowed on Directed
Verdict
A directed verdict of "not guilty" in a criminal case is not such a
"special verdict" as would authorize the State to appeal under G. S. 15-179.
25 January 1963
Criminal Procedure; Appeal From Recorder's Court to
Superior Court—Waiver
A defendant may perfect his appeal within the ten-day period pre-scribed
by law even though he may have signed a waiver of such right.
30 September 1963
Criminal Procedure; Appointment of Counsel for Indigent Defen-dants;
Compensation of Counsel; Payment Out of State Appropria-tion
FOR Counsel Appointed under the State Post-Conviction
Hearing Act
Counsel appointed for indigent petitioners under the State Post-Convic-tion
Hearing Act are entitled to be paid in the same manner and out of
the same appropriation of State funds as counsel who are appointed for
indigent defendants in State trials under Chapter 1080 of the Session
Laws of 1963.
2 January, 1963
Criminal Procedure; Nolle Prosequi; Effect on Further
Prosecution for Same Offense
Where a nol pros with leave has been entered by the court in a criminal
proceeding, the State may later reopen the case by the issuance of a capias
upon the original warrant or indictment.
9 April 1964
Criminal Procedure; Warrants; Desk Officers; Issuance of Search
Warrant
An officer designated by the chief of police as a "desk officer" pursuant to
G. S. 160-20.1, enacted by the 1963 General Assembly, would have authority
to issue search warrants as well as warrants of arrest.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27
8 November 1963
Criminal Procedure; Witnesses; Fees; Salaried Officers
A salaried law enforcement officer is not entitled to witness fees for
attendance at court in connection with cases in which he has officially par-ticipated
even though the trial occurs at a time or on a day when he is off
duty.
DETECTIVES
17 January 1963
Detectives; Private Detectives; Carrying Concealed Weapons
A private detective may not carry a pistol concealed about his person.
Before an individual may purchase a pistol in this State, he must first
secure a permit from the sheriff of the county where the purchase is to
be made.
30 May 1963
Detectives; Private Detectives; Collection Agencies; Prohibition
Against Engaging in Both Occupations
It is unlawful for a person to be a bill collector and a private detective
at the same time in this State.
DIVORCES
21 August 1963
Divorces; Judgments; Effective Date of Judgment
A judgment for divorce becomes effective as between the parties to the
marriage only on the day the judgment of divorce is signed by the judge.
16 December 1963
Divorces; Remarriage; No Waiting Period
With respect to your inquiry of December 11, 1963, when an absolute
divorce is granted in North Carolina, each party is free to remarry im-mediately
without any waiting period.
14 September 1962
Divorces; Validity of Foreign Divorce
If a divorce is legally obtained in a foreign state under the laws of such
foreign state, it would be recognized in North Carolina.
28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
DOUBLE OFFICE HOLDING
29 April 1964
Double Office Holding; Candidate for Public Office and Membership
ON A Local School Board
A member of a local school board is not required to resign from said
board when he becomes a candidate in the primary for membership on the
board of county commissioners.
However, both of the positions mentioned above are considered public
offices within the meaning of Article XIV, Section 7, of the Constitution,
which prohibits double office holding, and one person may not hold both
these offices at the same time.
14 November 1963
Double Office Holding; Chairman of County Board of Elections and
Member of Medical Care Commission
A chairman of a county board of elections and a member of the Medical
Care Commission are both public offices within the meaning of Article
XIV, Section 7, of the Constitution, which prohibits double office holding.
2 December 1963
Double Office Holding; County Commissioners; Commissioner
Serving as Jailer; Commissioners of Public Trusts
It would constitute a violation of G.S. 14-234 for a member of a board
of county commissioners to accept an appointment by the board to the
position of county jailer.
22 August 1962
Double Office Holding; County Manager-Auditor; Town Mayor
Where the powers and duties of the County Accountant have been im-posed
and conferred upon the County Auditor, under G. S. 153-115, and
such person also performs the duties of County Manager under G. S.
153-20, such person would be constituted a public officer within the meaning
of Article XIV, Section 7 of the Constitution of North Carolina.
21 June 1963
Double Office Holding; County Sanitarian and Member of Town
Zoning Board of Adjustments
A Sanitarian II, employed by a County Health Department, is a position
of employment and not a public office within the meaning of Article XIV,
Section 7 of the North Carolina Constitution,
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29
2 January 1964
Double Office Holding; Deputy Register of Deeds;
Local Registrar for Bureau of Vital Statistics
Local Registrars of Vital Statistics, appointed under G. S. 130-40, is a
public officer and may not hold another public office at the same time under
Article XIV, Section 7 of the North Carolina Constitution.
11 July 1962
Double Office Holding; Justices of Peace Acting as Policemen;
Authority to Issue Warrants
A justice of the peace may also be a member of a municipal police force,
since a justice of the peace comes within the express exception to the pro-scription
of double office holding of Article XIV, Section 7 of the North
Carolina Constitution. Such justice of the peace may, in his capacity of
justice of the peace, take the oath of another police officer to an affidavit
on which a criminal warrant is to be issued, and then, as justice of the
peace, issue a warrant thereon returnable before the judge of the municipal
court. STATE v McHONE, 243 NC 231.
2 July 1963
Double Office Holding; Justice of the Peace and Notary Public
A justice of the peace may also hold the office of notary public. See Sec-tion
7 of Chapter 313 of the Session Laws of 1961.
9 April 1963
Double Office Holding; Justice of Peace Holding Other Office;
Effect of Constitutional Amendment to Article XIV, Section 7,
AS of November 30, 1962
The exemption of a jubtice of the peace, from the prohibition as to
double office holding, has been removed from Article XIV, Section 7, North
Carolina Constitution, since certification of the Amendment on November
30, 1962.
30 July 1962
Double Office Holding; Member, Board of County Commissioners and
. . County Tax Supervisor
The same person may not occupy the offices of member of the Board of
County Commissioners and County Tax Supervisor, as this would constitute
double office holding contrary to Article XIV, Section 7, of the Constitution
of North Carolina.
30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
26 April 1963
Double Office Holding; Member, Board of Higher Education
Membership on the State Board of Higher Education is exempt from the
provisions of Article XIV, Section 7, of the Constitution, which prohibits
double office holding. The office of membership on the State Board of Higher
Education may be lav/fully held by a person holding any other public
office without violating the provisions of the Constitution referred to above.
A member of the Board is considered as falling within the exemption and
is considered a commissioner of a public charity.
29 April 1964
Double Office Holding; Member, County Board of Elections and
Local School Committee
Membership on a local school committee and membership on a county
board of elections are both considered public offices within the meaning of
Article XIV, Section 7, of the Constitution, which prohibits double office
holding, and one person may not hold both these offices at the same time.
15 August 1962
Double Office Holding; School District Committeeman
AND Postmaster
School district committeeman is a public office.
10 September 1963
Double Office Holding; State Employment; Janitor, Bus Driver;
Running for Public Office
There is no statute which would prohibit a school janitor or bus driver
from filing and running for public office in a county or township.
29 October 1962
Double Office Holding; Supervisor of Soil Conservation District and
Member of ASC
The position as supervisor of a Soil Conservation District and the posi-tion
as member of ASC are both public offices and one person may not hold
both offices at the same time, since this would constitute double office hold-ing,
which is prohibited by Article XIV, Section 7, of the North Carolina
Constitution.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31
24 January 1964
Double Office Holding; Trustees of University of North Carolina;
Commissioners of Public Charities
The office of trustee of the University of North Carolina is a public
office. However, the University of North Carolina is considered a charitable
institution; therefore, a trustee may lawfully hold another public office
without infriengement of Article XIV, Section 7 of the North Carolina
Constitution.
23 July 1962
Double Office Holding; Trustees of Watershed Improvement
Districts ; Registrars
North Carolina constitutional prohibitions against double office holding
apply to the office of registrar for election purposes and trustees of water-shed
improvement districts organized under Article 2, Chapter 139 of the
General Statutes.
EDUCATION
12 July 1963
Education; Colleges; A & T College; Special Policemen;
Bond Required
A person who is appointed a special policeman under Article 10 of Chap-ter
60 of the General Statutes is required to furnish a bond "payable to
the State of North Carolina, conditioned upon the faithful performance of
the duties of his office."
11 March 1964
Education; Colleges; Speaker Ban Law; Visiting Speakers at State-
Supported Colleges and Universities; Application of Act to Russian
Folk and Ballet Ensemble
Chapter 1207 of the Session Laws of 1963 prohibiting certain Communist
speakers and others from using the facilities of State-supported colleges
and universities has no application to a folk and ballet group who perform
on a college campus and whose activities are entirely in the artistic and
cultural field.
. .
' 11 November 1963
Education; Community Colleges; Board of Trustees as Body
Corporate and Governing Authority of Community Colleges
Under the provisions of Chapter 115A of the General Statutes the Board
of Trustees of a community college, technical institute or industrial edu-
32 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
cation center is a body corporate and is authorized by the statute to hold
title to property, both real and personal.
11 November 1963
Education; Community Colleges; Multiple-County Administrative
Areas; Financial Support of County in which College is Located and
County in which College is not Located; Approval of Contract by
Voters of County
If two or more counties form a multiple-county administrative area under
the Community College Act, then each county may agree in a contract as to
the percentages of costs that each county will pay for procurement of land
and erection of buildings; under such a contract a county in which the col-lege
is not located could agree to pay its pro rata portion of the operational
expense based on the proportion of students that such county furnishes to
the entire student body and such county may provide for bus transportation
to and from the college at its own expense; if a multiple-county administra-tive
area is formed and a contract is proposed between the various counties,
then the voters of each county concerned should approve the provisions of
the contract along with the question of furnishing a pro rata share of
financial support and this would constitute a continuing obligation year
after year unless the contract was legally terminated.
22 January 1964
Education; Community Colleges; Statutory Provisions Governing
Community Colleges Organized Prior to the Year 1963, or Prior to
THE Enactment of G. S. 115A.
Community colleges organized prior to the enactment of Chapter 115
A
of the General Statutes should transfer such colleges to boards of trustees
organized under said Chapter since Chapter 115A of the General Statutes
is now the controlling law in community colleges.
15 February 1964
Education; County and City Administrative Units; Acquisition of
Site for Educational Facility by One Unit within the Territorial
Boundaries of another Unit; Operation of Educated Facility by One
Unit within the Boundaries of another Unit; Authority of City
Administrative Unit to Transfer its Property; Title to Property of
Educational Facility
A county board of education may acquire a school site within the boun-daries
of a city administrative unit but the county unit may not operate a
school thereon without an agreement and approval of the city board of
education; a city board of education has no authority to transfer or make
a conveyance of its school property and buildings unless it meets the condi-tions
set forth in G. S. 115-126 as to the sale, exchange or lease of school
property.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33
15 May 1964
Education; Higher Education; Consolidated University of North
CAROLINA; North Carolina State of the University of North Carolina
AT Raleigh; School of Engineering; Educational Functions of the
University; Charlotte College; Authority to Confer Degrees in
Mechanical and Electrical Engineering
The Board of Trustees of the University of North Carolina allocates to
its various campuses the functions that shall be carried on by each college
and if new functions or educational programs are established at any of
the institutions, they should be authorized by the State Board of Higher
Education; there is nothing in the present statutes that prevents or pro-hibits
any of the campuses or colleges, when properly authorized, from giv-ing
courses in engineering; at the present time Charlotte College is subject
to Article 2 of Chapter 116 of the General Statutes and with the authoriza-tion
of the State Board of Higher Education it can grant engineering de-grees
in mechanical and electrical engineering.
25 February 1964
Education; Higher Education Facilities Act of 1963; Authority of
Governor to Appoint State Commission on Higher Education Facilities
By virtue of his constitutional executive power and also by virtue of
G. S. 143-164 the Governor of North Carolina has the legal authority to
appoint a commission and advisory group for the purposes of carrying out
the provisions, on the part of the State, of Public Law 88-204, known as
the Higher Education Facilities Act of 1963.
16 March 1964
Education; Industrial Education Centers; Establishment of Unit or
Satellite of Industrial Education Center in a County Other than
THE Original Center; Authority of Local Board of Education to
Finance Satellite Unit under Contract
An industrial education center located in one county has no legal
authority to establish and financially support an additional campus or
satellite unit in another county. .13April 1964
Education; Industrial Education Centers; Instruction and Classes in
Industrial Education in a County other than Original Center;
Authority of Local Board of Education to Finance Local Instruction
Industrial education centers can contract with local school boards for
area instruction and boards of county commissioners can budget funds to
the local school boards for this purpose.
34 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
11 April 1964
Education; Industrial Education Center; When Necessary to Hire
Architect; When Necessary to Submit Contract to Bidders
Architects are not required on public works projects unless the expendi-tures
are in excess of $20,000; repairs or additions can be made a unit of
government through its own employees if the project involved does not ex-ceed
$15,000; otherwise if the project is equal to or more than $3,500 then
the contract must be let to the lowest bidder after advertisement.
23 August 1962
Education; Public Schools, Act Providing Scholarship Loan Fund
for Prospective Teachers
The Scholarship Loan Fund for prospective teachers permits credit on
a scholarship loan for each full school year taught in a North Carolina
public school; the schools operated at Fort Bragg and at Camp Lejeune
for the dependents of military personnel are not North Carolina Public
Schools and credit cannot be given on a scholarship loan fund for any
year taught in such schools; Caswell School at Kinston is a North Carolina
public school and credit can be given on a scholarship loan for each year
taught in such school.
31 July 1963
Education; Public Schools; Age of New Employee; Teachers and
State Employees' Retirement System
There is no State law placing any limitation on the age at which a person
may be employed as a school teacher. Frequently local boards have, as a
matter of policy, adopted certain age limits but this is a matter of local
policy and not of State law.
30 April 1964
Education; Public Schools; Attendance Counselors; Pre-Trial Inves-tigations;
Referral to Department of Public Welfare; Compulsory
Attendance
An attendance counselor of the public school system is not required to act
as probation officer in the case of a child brought before a juvenile court;
such counselor is not required to fill out any forms used by the Department
of Public Welfare and has no connection with the Department of Public
Welfare.
13 February 1964
Education; Public Schools; Authority of Board of County
Commissioners Over Employees
Boards of county commissioners have no legal authority to control the
conditions of employment, office hours, sick leave, vacation, and holidays
of employees of county and city boards of education.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35
7 August 1962
Education; Public Schools; Authority of Board of Education to
Assign Children to Public Schools; Status of School Attendance
Pending Appeal of Parents to Superior Court
The board of education of a county is vested with complete authority to
assign pupils to the various schools under its jurisdiction; where parents
of children ask for reassignment of pupils and this is refused by the board
pending appeal to the Superior Court, the children should attend the schools
as ordered by the board.
30 April 1964
Education; Public Schools; Authority of Board of Education to
Contribute Funds for Construction of Sewerage Disposal Plant by
Municipal Corporation which will be Used by the School
A county board of education can contribute funds to a municipal cor-poration
for the construction of a sewerage disposal plant which will be
used both by the municipal corporation and by the school authorities.
29 May 1964
Education; Public Schools; Authority of Board of Education to
Provide for Sewage System
It is the duty of the board of education to provide sewage facilities for
public schools; where a town permits a county school system to use its
sewage facilities without any contract or agreement the town may termi-nate
the use of the facilities when it desires to do so.
11 April 1964
Education; Public Schools; Authority of Member of Board of
Education to Teach as a Substitute Teacher
If a person teaches in the public schools, such person is ineligible to be
a member of a city or county board of education. A member of a board
of education, therefore, should not teach in the public schools, even as a
substitute teacher, as this would render such person ineligible to serve on
the board.
14 February 1964
Education; Public Schools; Bond Issue; Reallocation of Funds With-in
THE General Purpose for Which Bonds are Authorized; Diversion
of the Proceeds of a Bond Issue for Capital Outlay Purposes
The Board of Education and the Board of County Commissioners may
reallocate bond proceeds where the reallocation is a mere change in the
method or manner in carrying out the basic purpose for which the bonds
36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
were approved; such funds, however, cannot be used for a new project
which is entirely different from the basic purpose as this would constitute
a diversion of funds.
12 October 1962
Education; Public Schools; Cafeterias Furnishing Food to Civic
Clubs and Public Meetings
Public school cafeterias under G. S. 115-51 can only be used or operated
for the convenience of teachers, school officers, and pupils of the school;
cafeteria facilities can be i;sed for supper and evening meetings or student
activities, teachers' meetings, meetings of the board of education and similar
school-related meetings under regulations issued by the boards of education.
29 May 1964
Education; Public Schools; City Administrative Units; Number of
Members of Board of Trustees
Boards of trustees of city administrative units were left, by the General
Statutes when the school laws were revised, as provided by the various local
acts governing such boards of trustees; where the statute fixes the number
of members of the board, no new or additional members can be appointed
or added to the board unless the statute is amended for such purposes.
14 March 1964
Education; Public Schools; Compulsory Attendance Law; Penalty
for Violation; Successive Violations of Compulsory Attendance Law
The Compulsory Attendance School Law creates a continuing offense and
a parent can be indicted and convicted for successive periods of time and
for successive offenses in failing to send a child to school.
13 December, 1962
Education; Public Schools; Consolidation of City and County
Administrative Units; County Assuming City's Bonded Indebtedness
Theretofore Incurred for School Purposes
In order to consolidate county and city administrative school units into
one administrative unit it is not necessary that the county assume the
bonded indebtedness of the city, the proceeds of which have heretofore been
spent for school purposes. If the county wishes to assume such bonded
indebtedness of the city the question of such assumption should be sub-mitted
to the voters in an election.
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 37
9 March 1964
Education; Public Schools; Consolidation of Districts; Creation op
New School Committee
When two school districts are consolidated into one district the two old
school committees cease to exist and the county board of education may
appoint a new committee for the one consolidated district.
17 August 1962
Education; Public Schools; Consolidation op Districts Having Special
Bonded Indebtedness With Districts Having no Bonded Indebtedness;
Consolidation for Administrative Purposes; Approval of State Board
of Education
A school district which has voted a bonded indebtedness under a so-called
County Act can be consolidated with a nontax district which levies no
special tax for purposes of administration and attendance of pupils; the
special tax district for bond purposes retains its boundaires unaltered for
tax levying and debt service purposes.
17 February 1964
Eduction; Public Schools; Constitutional Law; Religion and Public
Education; Prayer in Public Schools; Prayer on a Voluntary Basis
The reading of the Bible and recitation of prayers in the public schools
can be properly engaged in on a voluntary basis. It would be constitu-tionally
invalid if such reading of the Bible and saying of prayers were
by order of a school board or other State agency.
4 March 1964
Education; Public Schools; County Board op Education; Appointment
of Member of County Board of Education to Inspect Boilers of the
School System; Reimbursement for Services
A county board of education is not authorized to appoint one of its mem-bers
as a boiler inspector for the county schools and to pay him a per diem
and travel expense; boiler inspection is under the supervision of the Depart-ment
of Labor and such inspections must be made by licensed inspectors of
that Department.
14 May 1964
Education; Public Schools; County Board of Education; Authority
TO Provide Recreation Program During the Summer Months in Each
School District of the County
A county board of education has no authority to spend school funds to
establish a recreational system in the various school districts of the county
during the summer months and when the schpols are not in session,
38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
6 September 1962
Education; Public Schools; Dismissal of Teacher for
Violation of Traffic Laws
A school teacher should not be dismissed for violations of traffic laws
where no intoxication is involved upon the grounds that such violations are
immoral or disreputable.
11 April 1964
Education; Public Schools; Duty of County Commissioners to Supply
Office for County Schools; Quarters for County Board of Education
A county board of education has the authority to supply adequate fa-cilities
for the school system and this includes an office or office space in
which the board of education can hold its meetings.
14 December 1962
Education; Public Schools; Election to Enlarge City Administrative
Unit and Levy Supplemental Tax; Expense of Election; Right to
Determine District Lines; Transfer of Property and Operation of
Schools in Territory Added to City Administrative Unit
When a school election is held to determine whether or not a district of
a county administrative unit shall be added to a city administrative unit
with an equalizing tax, all expenses of such election are the obligation of
the city administrative unit; if such territory is added to the city adminis-trative
unit, then the school buildings and facilities and the operation of
same go to the city administrative unit but there may be an agreement
as to the transfer of property. All exchanges of students between the two
units and matters of tuition and attendance can be agreed upon in writing
between the two boards and made a matter of record by resolution of each
board.
26 February 1964
Education; Public Schools; Eligibility for Membership on Board of
Education; Person Conducting Private Music School in Connection
WITH Public School; Eligibility of Member of Local School Committee
A person conducting a private music school in connection with a public
school is not eligible to serve on a county board of education nor is a mem-ber
of a local district committee eligible to serve on a county board of edu-cation.
11 April 1964
Education; Public Schools; Eligibility of Member of County Board of
Education; Eligibility of Person Who is Superintendent of Workshop
Training Center
A person who is superintendent of a workshop school engaged in voca-tional
instruction for mentally handicapped adults aboyg 16-years of age,
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 39
which is operated under the rules and regulations of the State Board of
Education, and which school has one teacher paid by the State, is not
eligible for membership on the county board of education.
9 March 1964
Education; Public Schools; Expenditure of School Funds for Water
AND Sewer System for School Building; Duty of School Authorities
A county board of education is authorized to expend capital outlay funds
in order to provide water, sewerage and other sanitary facilities for public
school buildings.
6 September 1962
Education; Public Schools; Insurance; Liability of Board of Educa-tion
FOR Injury to Student Sustaining Broken Ankle in Football
Game
A school board is not liable for injury received by a student who sustains
a broken ankle in a football game; there is no statute or law under which
a school board can voluntarily assume liability and pay hospital bills for
such an injury.
28 April 1964
Education; Public Schools; Issuance of Bonds by City Administrative
Unit for Capital Outlay Purposes; County-Wide Issue for Capital
Outlay; Buncombe County Act and Cleveland County Act
There can be a county-wide bond election for capital outlay purposes for
all the schools in the county, including a city administrative unit; unless
the Buncombe County Act or the Cleveland County Act is applicable to a
county, then there is no machinery for a city administrative unit to issue
its own capital outlay bonds.
10 April 1964
Education; Public Schools; Lease of School Property; Lease to
Non-School Personnel of Vacant Apartment in Teacherage
A county board of education may lease unused apartments in a teacherage
to non-school personnel for a reasonable rental and for a term not in excess
of one year. Such lease should contain a clause that the lease shall termi-nate
if it again should be needed for public school purposes.
10 April 1964
Education; Public Schools; Length of School DAy; Authority op
Board of Education to Dismiss Pupils for a Limited Time for Purpose
OF Attending Agricultural Fair
The board of education of a county has the authority to permit teachers
and students to be dismissed from school for a lijiiited time in order to at-tend
a county agricultural fair.
40 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
3 December 1962
Education; Public Schools; Liability of City Board of Education
FOR Street Assessments
City school boards are liable for special assessments made by municipal
corporations on account of street improvements. These assessments are
not taxes, and the Supreme Court of this State has held that city boards of
education must pay such assessments.
10 April 1964
Education; Public Schools; Local Budgets; Transfer of Funds
Within the School Budget from One Code to Another
Within the current expense fund and within the capital outlay fund a
board of education may transfer funds from one code number to the other
if the board of county commissioners approves the transfer resolution.
12 May 1964
Education; Public Schools; Minimum Wage Law; Application op
Minimum Wage Law to School Employees
The Minimum Wage Act does not apply to county and city school boards
and other agencies of government.
4 June 1964
Education; Public Schools; Payment of Tuition for Pupils Who
Reside Out of District With Supplementary School Tax but Who
Attend School in Such District; Validity of Tuition Fee
The payment of tuition for pupils who live outside a special tax district
but who attend schools located within a special tax district is legal and valid.
13 May 1964
Education; Public Schools; Principal; Assistant Principal;
Authority For
A principal of a school cannot delegate his duties to any other person.
The school statutes do not provide for any such position as assistant prin-cipal.
6 November 1963
Education; Public Schools; Providing Basal and Supplemental
Textbooks; County and City Units Withdrawing from State Systems
A county or city administrative unit under the provisions of G. S. 115-220
cannot withdraw its elementary schools from the State rental program for
supplementary books in the elei»ent3,ry schools without the approval of
the State Board of Education,
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 41
2 July 1962
Education; Public Schools; Purchase and Contract; Purchase of
Mobile or Demountable Public School Classrooms
The demountable classroom facilities which do not remain on wheels and
are erected or set upon foundations may be purchased by school units
according to Chapter 143 of the General Statutes, known as the Public
Contracts Act, but the structural and functional soundness, safety and
sanitation of such units must be in accordance with plans approved by the
State Superintendent of Public Instruction; mobile units used for the
same purpose, which remain on wheels, fall under G. S. 115-52, relating
to the purchase of equipment, and must be purchased by school units on
State contracts established by the Division of Purchase and Contract.
13 May 1964
Education; Public Schools; Regulations of Board of Education;
Lowering Grade; Retroactive Application of Regulations
A city or county school board has no authority to pass a regulation low-ering
a pupil's grade as a form of disciplinary action; a city or county
school board has no authority to pass regulations and make the same
applicable in a retrospective manner.
14 May 1964
Education; Public Schools; Right of Children Discharged from State
Correctional Schools to Attend the Public Schools
Children discharged from correctional institutions of the State still have
a right to attend the public schools.
19 December 1962
Education; Public Schools; Sale of Surplus School Property
A County Board of Education may not transfer surplus real property
without specific legislative authority or complying with G. S. 115-126.
4 June 1964
Education; Public Schools; School Committee; Election of Chairman;
Resignation of Chairman and to Whom Made; Existence of
Disagreement as to Election of Principal
The resignation of a chairman of a school committee should be directed
to the county board of education. When the superintendent and the school
committee will not agree on the choice of a principal there exists a dis-agreement
and the board of education should appoint and employ a prin-cipal;
the county board of education determines whether or not a dis-agreement
exists.
42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
5 June 1964
Education; Public Schools; Special Funds; Ownership of Fund
Provided for Special Purpose in High School After High School is
Consolidated with other High Schools
Funds deposited by a class of Future Farmers of America in the high
school for the promotion of forestry study should be handled as special
funds under G. S. 115-91 (c); if the high school is consolidated with other
high schools into a central high school, then the funds follow the school's
succession and should be used for the forestry project in the consolidated
high school.
30 August 1962
Education; Public Schools; Supplemental Tax. Information to be
Furnished to Governing Authority of City in Preparing Supplemental
Tax Budget
In making budget requests for supplemental funds city administrative
units should present all financial data to the city governing authority,
including items contained in the budget presented to the county.
1 June 1964
Education; Public Schools; Teachers Demonstration Schools;
Authority of County Board of Education to Cooperate With Teachers
College in Operating Demonstration School
County boards of education have the authority to enter into agreements
with teachers' colleges for the operation of demonstration schools; the final
authority, however, for the employment of principals and teachers is vested
in the county board of education and cannot be delegated or shared jointly
with the president of a teachers' college.
30 January 1964
Education; Public Schools; Transportation of Pupils to Summer
Schools Operated by the Public School System; Use of Public School
Buses for such Purpose
Public school buses can be used for the transportation of pupils to sum-mer
schools of the public school system; boards of education, however,
should procure liability insurance to protect the boards and pupils from
negligent injuries and this should be required by regulations of the State
Board of Education.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 43
5 June 1964
EDUCATION; Public Schools; Use of Laboratory Facilities of a
Public School by a Non-Public School
A county or city board of education has no legal authority to make its
laboratory facilities available to a non-public or private school since school
property must be devoted to public school use exclusively.
30 January 1964
Education; Public Schools; Use of School Buses for Transportation
OF Pupils to Career Day Programs
Public school buses and their transportation uses are controlled by G. S.
115-183; such public school buses cannot lawfully be used for career day
programs which have no rational or legal connection with the public school
system and pupils cannot be transported by public school buses for such
purpose.
24 October 1963
Education; Public Schools; Use of Supplementary Tax Funds to
Employ Extra Teacher, Supplement Salaries of Principals and Pay
Salary of Coach or Physical Education Teacher
Under the provisions of G. S. 115-116 supplementary tax funds can be
used to employ an extra teacher as a librarian, relieve a principal of part-time
classroom teaching duties, supplement salaries of classified principals,
and pay a coach or physical education teacher during summer months in
physical education program.
23 August 1962
Education; Sales of Articles in Dormitory of Institution of
Higher Learning
There is no statute prohibiting the sale of various articles in the dormi-tories
of colleges and universities; with certain exceptions State depart-ments
and institutions and their employees cannot engage in the sale of
articles of commerce in competition with private individuals or private
business; the board of trustees of the various colleges and universities have
the authority to pass ordinances or regulations, either prohibiting or regu-lating
the sale of articles by students in the various dormitories.
1 June 1964
Education; State Board of Higher Education; Gifts to State Board of
Higher Education to Finance Surveys; Authority to Keep Gifts in
Special Account other than Financial System of the State
A State agency can receive a gift of funds for specific research or for a
specific purpose and if the donor wishes, it may be kept in a separate
44 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
account and used by said agency for said purpose; any auditing of the
fund would not relate to the purpose of the expenditure.
ELECTIONS
21 November 1963
Elections; Absentee Ballots; Construction of Chapter 457,
Session Laws of 1963
All applications for absentee ballots shall be approved or disapproved
by the County Board of Elections at its meetings held for that purpose,
and no absentee ballot shall be delivered in person or by mail to the voter
until the application has been approved by a majority of the county board
of elections.
1 November 1963
Elections; Compensation of Precinct Officials
In primary and general elections, the county boards of elections have
authority to appoint the judges, registrars, assistants, clerks and other
precinct personnel, as authorized in Chapter 163 of the General Statutes,
and such officers and personnel shall be compensated by the board of com-missioners
of the respective counties as provided by statute.
2 November 1962
Elections; Corrupt Practice Act; Filing Statement of
Expenditures and Contributions in General Election
G. S. 163-195 requires any and all campaign committees to file with the
Secretary of State a statement of all contributions and expenditures made
in behalf of a candidate in any primary, general or special election; but
if a candidate, in the general election, receives all contributions and makes
all expenditures in his behalf, then such candidate does not have to file
the statement of contributions and expenditures with the Secretary of State.
19 June 1964
Elections; Eligibility of Voter; Literacy Test; Persons Whose Names
Appear on the Registration Books but Who are Unable
to Pass Literacy Test
Where it is suggested to a county board of elections that some of the
persons registered cannot meet the literacy test a county board of elections
operating under a loose-leaf and visible registration system can hear chal-lenges
made to the registration of such persons and make its findings as
to the eligibility of guch persons.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45
29 January 1964
Elections; Filing Fee Required of Candidates in Primary;
Clerk of Superior Court
Compensation received by clerks of superior courts in their capacity as
ex officio clerks of recorder's courts and judge of juvenile courts should
not be included in the annual salary in computing the filing fee required
of candidates for the office of clerk of superior court under G. S. 163-120.
31 July 1962
Elections; General; Substitution of Candidates After Primary;
Nomination of Senatorial Candidates by District Executive Committee
Under G. S. 163-113, when there is no rotation agreement among the
counties comprising a senatorial district, selection of substitute nominee
for State Senator is made by the Senatorial Executive Committee of the
party in which the vacancy occurs. The terms of the proviso in G. S. 163-145,
under which county boards of election may order substitution of candidates
after the primary or convention "for good cause shown," is construed to
mean that the county board has discretionary authority to determine
whether reasons for necessity of substitution are bona fide, arose in good
faith, and are so compelling that the candidate for whom substitution is
sought would be prevented from representing his party effectively, or from
serving in the office to which he might be elected.
22 January 1963
Elections; Inspection of Registration and Poll Books
County registration books and poll books are deemed to be public records
and subject to inspection by electors as provided by statute.
20 June 1963
Elections; Municipal ABC Election by Special Act;
Beer and Wine Election
A county or municipal election on the question of legal sale of beer or
wine or both may not be held on the same date of a special liquor election
in a municipality, or within 60 days of any general, special or primary
election in the county or any municipality therein, until after July 1, 1963.
G. S. 18-124 (f) specifies what conditions must be met in order for a beer
and/or wine election to be held on the same date as an election for ABC
stores.
2 April 1964
Elections; Primaries; Selection of Nominee; Write-in Vote Not
Authorized in Primary
The exclusive method for the nomination of a nominee of a political
party is provided by Article 19, Chapter 163 of the General Statutes (Pri-
46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
mary Laws), and a person may not become a nominee in the party primary
by "write-in votes.
24 October 1962
Elections; Primaries; Write-in Votes Not Authorized
While write-in votes are permitted in general elections, write-in votes
are not authorized by law in primary elections.
14 May 1964
Elections; Registration; Ability to Read and Write
Printing or block type copying of sections of the Constitution is sufficient
to qualify an applicant under the written test for registration.
29 April 1964
Election Laws; Registration; Books Must be Held Open at Polling
Places
Registration books must be held open at polling places. They may not
be kept open at any other place.
19 October 1962
Elections; Registration; Invalidity of "Grandfather Clause"
The so-called Grandfather Clause contained in the North Carolina Con-stitution
is invalid.
27 May 1964
Elections; Registration; Member of One Political Party Challenging
Member of Another Political Party
The right to challenge, as provided in Article 12, Chapter 163 of the
General Statutes, pertains to the constitutional qualifications of the chal-lenged
voter and, therefore, any elector may challenge the name of any
person registered even though the challenger and the challenged voter are
members of different political parties.
15 October 1962
Elections; Residence — Voter Moving to Another County One Week
Prior to General Election
A person may move his residence from one county to another and not be
deprived of his right to vote in the precinct, ward or other election district
from which he moved until thirty days after such removal. Art. VI, Sec. 2,
N. C. Constitution; G. S. 163-25.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 47
2 November 1962
Elections; Write-in Votes for Township Office; Number Required
A write-in candidate in the general election for county or township office
or for the House of Representatives or for the State Senate, must receive
as many as 5% of the votes cast for candidates for Congress in the town-ship
or county in which said write-in candidate is running as a prerequisite
for his being elected.
EMINENT DOMAIN
17 September 1962
Eminent Domain; Condemnation; Boards of County Commissioners;
Authority to Condemn Property for County Buildings
Boards of county commissioners are possessed only with those powers
which have been expressly conferred or which are necessarily implied for
the proper exercise of the duties imposed upon them and may not exercise
the power of condemnation unless expressly conferred by the Legislature,
or the power of condemnation is necessarily inferred from the particular
act involved.
17 May 1963
Eminent Domain; Hospitals; Power of Condemnation
A hospital, owned by a County, has the power of condemnation as pro-vided
in G. S. 131-28.14 to condemn private property for a hospital purpose.
25 April 1963
Eminent Domain; Local Modification of a General Law; Delegation
of Power of Eminent Domain; School Law — Property
A local or special act may take precedence over the general law with
respect to the exercise of the power of eminent domain.
The power of eminent domain can be delegated to a county or city school
board by a local or special act.
3 December 1963
Eminent Domain; Municipalities; Sewerage and Waterworks;
Condemnation of School Property by a Municipality for
Sewage System Purposes
In the exercise of a general power of eminent domain, a municipality
may condemn lands belonging to a county school board where the lands
are not in actual public use or not needed for school purposes, provided
that the public use to be established thereon will not destroy the existing
48 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
use of the remainder of the tract or interfere with the existing use to such
an extent as is tantamount to a further taking or destruction.
4 May 1964
Eminent Domain; Precedence of Trial
The provisions of G. S. 40-33 providing for precedence of condemnation
trial apply only to proceedings instituted under the provisions of Article 3
of Chapter 40 of the General Statutes.
19 May 1964
Eminent Domain; Right of Municipality to Condemn Property for
State Highway System Street
A municipality is authorized to condemn right of way for State Highway
System strees and may bring the action in the name of the municipality.
7 May 1964
Eminent Domain; State Highway Commission; Highway Right of Way
The State Highway Commission has no authority to create a property
interest in a private party which would be superior to the easement of the
State for highway purposes in lands acquired for right of way. An ease-ment
is a property interest, the taking of which requires the payment of
just compensation.
EMPLOYMENT SECURITY ACT
20 January 1964
Employment Security Act; Employers; Notice to Employers; Validity
OF Notices to Attorneys in Fact Purporting to Represent Employers
The various statutes in the Employment Security Act requiring that
notices, forms and other documents be sent to employers mean that such
notices, forms and documents shall be sent to the employers themselves and
not to consultants, accountants and others who hold power of attorney to
act as attorney in fact.
EMPLOYMENT SECURITY COMMISSION
2 April 1964
Employment Security Commission; Clerks of Court; Fees; Docketing
E.S.C. Certificates; Statutory Construction
Chapter 288 of the Session Laws of 1945 prescribing a fee of $1.00 for
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49
the clerk of the superior court for indexing and docketing Employment Se-curity
Commission certificates, is applicable in every county in the State
unless said statute has specifically, by reference thereto, been amended or
modified.
ESTATES
31 December 1963
Estates; Administration of Estates; Survivor's Allowance
Bank accounts and savings accounts would be proper assets of the dece-dent's
estate from which to award the survivor's year's allowance pursuant
to Article 4 of Chapter 30 of the General Statutes of North Carolina.
EXECUTION
21 February 1963
Execution; Vested Remainder in Real Property; Homestead Exemption
The vested remainder interest of a nonresident in real property in this
State may be levied upon and sold at execution, and such nonresident is
not entitled to a homestead exemption.
EXECUTORS AND ADMINISTRATORS
11 July 1963
Executors and Administrators; Assets; Growing Crops
Crops planted and ungathered at the decedent's death are considered
personal assets of the estate of the decedent.
11 July 1963
Executors and Administrators; Claim by an Educational Institution;
Priority
A claim by an educational institution against the estate of a decedent
would be considered a debt of the fourth class and entitled to priority in
payment over the general creditors of the estate.
50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
6 July 1962
Executors and Administrators; Estates of Less Than $1,000.00;
Receipt for Contents of Safe Deposit Box
Where the Clerk of Superior Court administrates the assets of estates
of less than $1,000.00, he would be the proper person to give a receipt for
the contents of a safe deposit box.
7 January 1963
Executors and Administrators; Final Accounts;
Compelling Accounting
The clerk of the superior court can require an accounting of the pro-ceeds
of a wrongful death action prior to the expiration of two years after
qualification of an administrator where the estate has otherwise been fully
administered.
29 June 1964
Executors and Administrators; Intestate Succession Act;
Determination of Shares of Brothers and Sisters and Their
Lineal Descendants
Surviving nephews and nieces by deceased brothers or sisters of the
intestate share equally in that portion of the intestate's property not
passing to surviving brothers and sisters of the intestate.
8 May 1963
Executors and Administrators; Intestate Succession Act;
Distribution to Children and Grandchildren
The Intestate Succession Act, which became effective July 1, 1960, pro-vides
that the distribution of property in all classes shall be on a per capita
basis.
17 December 1962
Executors and Administrators; Legal Fees; Estate Tax Controversy
Involving Nonprobative Assets of Decedent
Where an executor employs counsel to assist him in the administration
of the estate, the contract is personal and not a debt against the decedent's
estate. The executor must pay it, and if the disbursement were reasonably
necessary to conserve the estate, it will be allowed him in settlement of his
account as a necessary expense of administering the estate.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51
31 December 1963
Executors and Administrators; Nonresident;
Ancillary Administration
Where a nonresident dies leaving personal property in this State, an
ancillary administration is required in the county where the property is
located.
7 August 1962
Executors and Administrators; Sale of Real Property to Make
Assets for Payment of Debts; Necessary Parties
There is no requirement that the spouses of heirs or devisees be joined
as parties defendant in a special proceeding for the sale of real property
owned by the testator to make assets for the payment of his debts.
i
- 24 January 1964
Executors and Administrators; Sale of Eeal Property to Make
Assets; Rights of Judgment Creditors of Devisees
Where real property of a decedent is sold by his personal representative
to make assets to pay debts of the estate, judgment creditors of the heirs
or devisees of such real property may assert their interest in any surplus
proceeds prior to distribution of such proceeds by the personal representa-tive.
Linker v. Linker, 213 N. C. 351.
FAIRS
7 September 1962
Fairs; Agricultural; Circuses; Conflicts in Dates
A circus does not come within the purview of G. S. 106-516.1, which
prohibits the exhibition of carnival or shows "of like kind" within 30 days
prior to a regularly advertised agricultural fair. Circus performances as
they relate to conflicts in dates with agricultural fairs are governed by
G. S. 106-519 and G. S. 105-38.
FIRE PROTECTION
19 March 1964
Fire Protection; Departments; Rural Fire Districts;
Removing Portion of District
There is no statutory procedure for cutting off and removing a portion
of a rural fire protection district.
52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
19 July 1962
Fire Protection; Districts; Election; Petition
A petition signed by the requisite number of property owners, addressed
to the county commissioners, asking for the creation of a fire protection
district and for the levy of a tax in support thereof "of not exceeding five
cents (54) on the one hundred dollar ($100.00) valuation" is valid, although
the statute sets a maximum rate of taxation at 15(!S on the $100,00 valuation.
9 November 1962
Fire Protection; Firemen; Firemen's Pension Fund; Retiring After
30 Years of Service but Before Reaching the Age op 55 Years
Under the provisions of G. S. 118-25, a fireman v^^ho is 51 years of age,
has had more than 30 years of service in a department and who is other-wise
eligible, may retire before age 55 and continue his membership in the
North Carolina Firemen's Pension Fund by making his monthly payments
until he reaches the age of 55 or until he has made monthly payments into
the fund for 30 years, whichever is the earlier.
7 December 1962
Fire Protection; Oath of Office of Commissioners of
Rural Fire Protection Districts
The oaths of office of commissioners of rural fire protection districts
established pursuant to G. S. 69-25.1 et seq. are prescribed by G. S. 11-6,
11-7 and 11-11.
GUARDIANS
3 July 1962
GUARDIANS; Guardian and Ward; Foreign Guardian;
Sale of Realty and Removal of Proceeds
Real property located in North Carolina and belonging to a nonresident
ward may be sold or otherwise converted into personalty as an incident to
a proceeding in which a foreign guardian seeks removal of the ward's
personalty from North Carolina to the state of the ward's residence.
4 September 1962
Guardians; Guardian and Ward; Parent's Duty to Support Where
Child Has Independent Estate
Where a father is dead and the mother has adequate financial resources,
she is responsible for the support, maintenance and education of the child
even though the child might have a separate estate of its own.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 53
3 January 1964
Guardians; Investment op Funds; Diversified Common Stocks
A guardian may invest the funds of his ward in diversified common
stocks provided he uses good faith and due diligence in making such invest-ments.
HEALTH
3 May 1963
Health; Immunization Against Certain Diseases; Kindergartens
Sections 130-91 and 130-93.1 require immunization of children against
certain communicable diseases before being allowed to enter school, and
the word "school" as used in this context would include kindergartens.
5 December 1963
Health; Local Board of Health; Compulsory Vaccination or
Immunization
A local board of health has authority to adopt reasonable rules and regu-lations
requiring "booster immunizations" with respect to certain infections
or diseases such as tetanus, diphtheria and poliomyelitis.
1 October 1962
Health; State Board of Health; Nursing Homes; Licensing;
County-Owned Nursing Homes
County-owned nursing homes are subject to the provisions of Chapter
130 of the General Statutes relating to the licensing of nursing homes.
22 March 1963
Health; State Board of Health; Polio Immunization; Schools;
Immunization Before Admission to School
The law requires proof of polio immunization before a child can enter or
attend any public, private or parochial school in this State (except for the
sections relating to the child's health or religious objections).
13 March 1964
Health; State Board of Health; Restaurants; Regulations;
Free Toilet Facilities
The regulations of the State Board of Health requiring that free toilet
facilities be made available for employees and patrons of restaurants and
54 BIENNIAL REPORT OF THE ATTORNEY GENERAL, [VOL.
certain other foodhandling establishments are valid and authorized by Sec-tion
72-46 of the General Statutes.
31 March 1964
Health; State Board op Health; Tuberculosis;
Spreading of Communicable Tuberculosis
A person who has tuberculosis in an active, infectious stage is guilty of
a criminal law violation if he refuses to submit to appropriate treatment.
8 April 1963
Health; Tuberculosis Patients; Right to Home Treatment
With respect to tuberculous persons, when there is no danger to the
public or to other individuals as determined by the health director, the
tuberculous person may receive treatment at home.
HIGHWAYS
29 April 1963
Highways; Extension of Blue Ridge Parkway; Enabling Legislation
Should the Federal Government authorize a spur to be built extending
the Blue Ridge Parkway from a point in North Carolina near Beach Gap
to the Georgia State line, no new legislation is necessary in North Carolina
in order for the State of North Carolina to acquire the necessary right of
way for said extension due to the provisions of G. S. 136-19.
20 May 1964
Highways; Signing of Dual Lanes
The use of signs designated "Divided Highway" and "Keep Right" at the
beginning of a dual lane highway, where lanes are separated by a median,
and one-way traffic only is permitted on each of the separate lanes, is in
conformance with the Manual on Uniform Traffic Control Devices; and is
an appropriate sign within the meaning of G. S. 20-165.1 indicating the
direction of traffic on a one-way portion of the dual lane highway.
HOSPITALS
28 May 1964
Hospitals; Counties; Public Bidding; Purchase of Insurance
ON Hospitals
In obtaining insurance on county-owned buildings, it is not necessary to
follow the public bidding provisions of Article 8 of Chapter 143 of the
General Statutes.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55
17 May 1963
Hospitals; Eminent Domain and Condemnation
Wayne County Memorial Hospital, owned by the County, has the power
of condemnation as provided in G. S. 131-28.14 to condemn private property
for a hospital purpose.
10 April 1963
Hospitals; Mental Institutions; Disclosure of Contents of Records;
Names of Patients Listed in Psychiatric Register
Names of patients listed in the Hospitals Board of Control psychiatric
register are privileged to the extent provided in G. S. 122-8.1 and G. S. 8-53.
12 April 1963
Hospitals; Public; Hospital District; Issuance of Bonds
Article 13C of Chapter 131 of the General Statutes does not restrict a
hospital district to a single bond election. Bond elections may be had from
time to time if petitioned for.
27 September 1963
Hospitals; Staff Physicians in State Hospitals;
Liability for Results of Official Acts
A State hospital is classified as a charitable institution and would not
be liable for the negligence of its servants and employees provided they
had used due care in their selection and retention.
5 April 1963
Hospitals; State Hospitals; Educational Institutions; Infirmaries
The Hospital Licensing Act applies to all State hospitals but not to edu-cational
institutional infirmaries.
INSANE AND INCOMPETENTS
9 July 1962
Insane and Incompetents; Certifying Physicians in Connection with
Commitment of Alleged Mentally Disordered Persons to
State Hospitals
Being a staff member of a State institution does not disqualify a physi-cian,
who otherwise meets the requirements of G. S. 122-43, from making
certification of alleged mentally disordered persons for commitment to
56 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
State hospitals, provided the certifying physician is a member of the staff
of the institution to which commitment is contemplated.
22 October 1963
Insane and Incompetents; Commitment Procedure; Notice of Hearing
For persons judicially committed to mental institutions prior to July 1,
1963, the procedure as it existed prior to the 1963 Amendments, which be-came
effective July 1, 1963, is applicable.
24 September 1962
Insane and Incompetents; Inmates of State Hospitals; Procedure
When Surgical Operations on Inmates are Necessary
Under North Carolina G. S. 130-191, medical staff of any State hospitals
or other State institutions is authorized to operate on inmates where neces-sary
to improve inmate's physical or mental condition. Decision to be made
by chief medical officer of institution with approval of superintendent and
with advice of institution's medical staff. No operation to be made without
consent of inmate or, if inmate non compus mentis, by responsible member
of family or a guardian,
22 October 1963
Insane and Incompetents; Non-Resident Infant Having Real
Property in this State; Guardianship
The Clerk of Superior Court of a county in North Carolina in which
there is located real estate owned by a non-resident infant, is authorized,
upon proper showing that the infant has a guardian in his or her state
and does not have a guardian in North Carolina, to appoint an ancillary
guardian in the North Carolina clerk's county where the property is located.
N. C. G. S. 33-31.2.
20 March 1963
Insane and Incompetents; Persons Already in Hospital; Hearing
Before Clerk as to Indefinite Commitment; Venue and Jurisdictions
Where a person has been committed to mental institution for temporary
period of observation, the hearing at the end of that period on the question
of final commitment must be held by the clerk of and in county of person's
residence, if known; otherwise, hearing must be held by clerk of and in
county who ordered initial, temporary commitment.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 57
INSURANCE
3 June 1963
Insurance; Contract; Validity of Certified Copy of
General Power of Attorney
Opinion given that a certified copy of the general power of attorney-issued
in conjunction with a guaranty contract by an insurance company
is valid and binding upon the insurance company if the corporate seal is
attached thereto, citing G. S. 55-36 (c) and (d).
22 May 1964
Insurance; Debt Cancellation Contracts; National Banks
National banks engaging in the insurance business in this State are sub-ject
to the provisions of Chapter 58 of the General Statutes of North
Carolina and such banks must comply with the insurance laws of North
Carolina in negotiating debt cancellation contracts.
V . 6 March 1963
Insurance; Group Life; Putnam Plan, Sale of Securities With
Group Life Insurance
Sale of securities under a plan which includes group life insurance with
the seller of the securities as the insured and resulting in distribution of
life insurance proceeds to the seller at the death of the purchaser and
where the purchaser is not obligated to continue payments for any period
of time or for any definite amount, is one in which the seller has no insur-able
interest in the life of the purchaser of the securities.
'^-
1 November 1962
Insurance; Hospital, Medical and Dental Service Corporations;
Donations for Religiols, Charitable, Scientific or Educational
Purposes Not Allowed
Hospital, medical and dental service corporations organized and oper-ated
under Chapter 57 of the General Statutes are not permitted by law
to make donations for religious, charitable, scientific or educational pur-poses.
16 August 1962
Insurance; Offering Inducements, Other Than Provided in the
Policy, to American Legion Post Members Prohibited; Soliciting
Insurance by Unlicensed Agents; Violation op Insurance Laws
Plan of an insurance agent to use unlicensed members of an American
Legion Post to solicit insurance business from Post members and to donate
58 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
50% of the first quarterly premium to the American Legion Post would,
if consummated, violate the anti-rebate statute, G. S. 58-44.5, and G. S.
58-51.3 prohibiting use of unlicensed persons to solicit insurance business.
5 August 1963
Insurance; State Employees' Group Insurance; Accumulated Funds
The State Highway Commission, in deducting sums from employees'
salaries for payment of group insurance premiums, acts as a trustee for
the employee, and any sums deducted in excess of the amount required to
pay the premium should be returned to the employee from whom it was
received.
JURIES; JURORS
24 September 1963
Juries; Jurors; Challenges; Special Venire; Criminal Law
A special venireman drawn from the jury box is on the same standing
as a regular juror and is not subject to challenge for cause for having
served on the jury within two years prior to the term.
A special venireman who has not been drawn from the jury box is sub-ject
to the same challenges for cause as tales jurors. STATE v LEVY,
187 NC 58L
LABOR
3 December 1963
Labor; Department of Labor; Hours of Work for Women in Certain
Industries; Waitresses in Hotels; Motel Dining Rooms and
Coffee Shops
While employees of hotels and motels are exempt from G. S. 95-17, never-theless,
waitresses in hotels, motel dining rooms and coffee shops are
covered by G. S. 95-27 restricting their work hours to ten hours per day
and fifty-five hours per week.
18 February 1964
Labor; Department of Labor; North Carolina Voluntary
Apprenticeship Act; State Apprenticeship Council; Federal Regula-tions
AS to Nondiscrimination in Apprenticeship and Training
State Apprenticeship Councils, with the approval of the Commissioner
of Labor, can adopt federal standards as to nondiscrimination in appren-
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 59
ticeship agreements but are not compelled to do so; it is suggested that
after consultation with employers such standards might be adopted for
projects under federal contract or projects which are developed and con-structed
in whole or in part by federal funds.
LOTTERIES
4 March 1963
Lotteries; Pinball Machines
The possession, sale, use or operation of pinball machines is not per-mitted
in North Carolina. See G. S. 14-306.
28 April 1964
Lotteries; What Constitutes a Lottery
In order to constitute a lottery in this State, there must be three elements
present, to wit: (1) a prize; (2) a consideration; and (3) the winner of
the prize is to be determined by some formula of chance.
The rule is that, where the winner of a contest is partly determined by
chance and partly by the skill of the contestant, the scheme is a lottery,
provided the element of chance is predominant. On the other hand, if the
element of skill predominates over that of chance, the scheme or plan is
not a lottery.
MARRIAGE
13 July 1962
Marriage; Authority of a Justice of the Peace to Perform a Marriage
Ceremony Outside his County
A justice of the peace may not perform a marriage ceremony in a county
other than his own.
19 November 1963
Marriage; Authority to Perform Marriage Ceremony
Under the provisions of G. S. 51-1, a marriage ceremony may be per-formed
in this State in the presence of an ordained minister of any religious
denomination, minister authorized by his church, or of a justice of the
peace.
60 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
3 September 1963
Marriage; Chinese; Residence
There is no law in this State prohibiting the marriage of a Chinese resi-dent
to a white resident. It is not necessary to be a resident of North
Carolina in order to get married in this State.
2 January 1964
Marriage; Licenses; Correction of Mistakes in Name
Section 51-18.1 of the General Statutes authorizes the register of deeds
to correct errors as to names on applications for marriage licenses, mar-riage
licenses issued thereunder, and returns or certificates of officiating
officers.
3 June 1964
Marriage; Licenses; Failure to Return; Validity of Marriage
Unaffected
The validity of a marriage is not affected by the failure of the person
performing the ceremony to return the license to the Register of Deeds.
7 October 1963
Marriage; Out-of-State Marriage; N. C. Residents; Filing op
Certificate with a Register of Deeds
North Carolina residents who marry outside the State must, within 60
days after return to this State, file a certificate showing compliance with
the North Carolina statutes relating to premarital health examinations.
5 November 1963
Marriage; Parents' Consent; Which Parent
When a person of sixteen years of age and under eighteen is residing
with both his father and mother, the written consent of either parent fulfills
the statutory requirement of written consent.
24 June 1964
Marriage; Proxy Marriage; Not Authorized in North Carolina
North Carolina law does not authorize absentee or proxy marriage cere-monies
to be performed in this State.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 61
MERIT SYSTEM COUNCIL
7 August 1962
Merit System Council; Rule; Political Activity; Caseworker Elected
Member of Town Board of Aldermen in Non-Political Election;
Hatch Act
Neither the Federal statutes nor the Merit System Rule prohibits a per-son
employed under the Merit System from serving as a member of the
board of aldermen of a town where the election is nonpartisan and is not
related to political parties.
MILITIA
23 January 1964
Militia ; Six Months' Active Duty for Training; Applicability of
Soldiers' and Sailors' Civil Relief Act
The provisions of the Soldiers' and Sailors' Civil Relief Act of 1940
(50 U.S.C. App. §§501-548, 560-590) apply to a member of the Army
National Guard while he undergoes the required six-months' period of
active duty for training.
MOTOR VEHICLES
24 April 1963
Motor Vehicles ; Driver's License ; Chauffeurs ; Farmers Hauling Labor
Under G. S. 20-6 farmers hauling farm labor on trucks of over nine
passenger capacity are required to possess chauffeur's license.
28 November 1962
Motor Vehicles; Driver's License; Chauffeurs; Nonresident Employed
BY North Carolina Corporation
A nonresident chauffeur employed by a North Carolina corporation
would be required to possess a valid North Carolina chauffeur's license in
order to operate trucks of his employer over the highways of this State
notwithstanding the fact that such nonresident may possess a valid
chauffeur's license from his state of residence.
62 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
2 April 1963
Motor Vehicles; Driver's License; Driving While License Suspended;
FAILURE TO File Proof of Financial Responsibility Following Stated
Period of Suspension
A person Mrho operates a motor vehicle after the stated period of suspen-sion
of his license has expired but before filing proof of financial responsi-bility
would be chargeable under G. S. 20-28 (a) for driving while license
suspended. His punishment upon conviction of such offense would depend
upon whether or not his license had been reinstated by the Department
of Motor Vehicles following the stated period of suspension. If his license
had not been reinstated, he would be punishable as provided for persons
convicted of driving while license suspended. On the other hand, if his
license had been reinstated following the stated period of suspension and he
had failed to maintain financial responsibility subsequent to the loss of his
license for this cause, he would be punishable as for operating with no
operator's license.
12 March 1963
Motor Vehicles; Driver's License; Driving While License Suspended;
Penalty
A restoree of a suspended or revoked operator's license, within the con-templation
of G. S. 20-28, is a person whose license has been reinstated by
the Department of Motor Vehicles for some period of time following the
stated period of suspension contained in the suspension or revocation order
of the Commissioner of Motor Vehicles. Mere expiration of the stated period
of suspension contained in the Commissioner's suspension order does not
constitute such person a restoree.
25 September 1962
Motor Vehicles; Driver's License; Nonresident Operator's License;
Fifteen-Year-Old Minors
A minor fifteen years of age, even though properly licensed in his home
state, may not operate a motor vehicle on the highways of North Carolina.
27 September 1962
Motor Vehicles ; Driver's License ; Operation of Farm Tractor by Minor
A farm tractor is a "motor vehicle" as that term is defined in the Uniform
Driver's License Act and a person who permits an unlicensed minor to
operate a farm tractor contrary to the provisions of the Uniform Driver's
License Act would be in violation of G. S. 20-34.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 63
26 November 1962
Motor Vehicles; Driver's License; Resident Driving on Out-of-State
License
A resident of North Carolina may not operate a motor vehicle over the
highways of this State on an out-of-state driver's license even though such
operation may amount to only a small proportion of the total miles driven
by the North Carolina resident.
24 October 1963
Motor Vehicles; Engaging in Business as Motor Vehicle Dealer
An automobile rental agency, which places its own rental cars on its lot
for sale after it is determined that they need to replace them with newer
models for rental purposes, is not engaging in the sale of motor vehicles,
requiring the payment of a license privilege tax; neither does it subject
them to the Motor Vehicle Dealers Licensing Law. -
18 March 1963
Motor Vehicles; Interpretation of G. S. 20-158 (a) ; Stopping at a Stop
Sign and Yielding Right of Way
G. S. 20-158 (a) describes two offenses rather than two elements of the
same offense. The statute is violated where a motorist either fails to stop
at a stop sign or, having stopped, fails to yield right of way.
22 January 1963
Motor Vehicles; Municipal Regulations; Direction Signs at
Intersections
Direction signs Installed by local authorities pursuant to G. S. 20-153 (c)
must be authorized by ordinance of the local governing body in the same
manner as other traffic ordinances are adopted.
25 October 1963
Motor Vehicles; Operator of Motor Vehicle Having a Non-Owner's
Liability Policy; Owner Permitting Same to be Operated Without
Liability Insurance
A licensed operator of a motor vehicle who has a non-owner's liability
insurance policy does not violate any laws of this State by operating a
motor vehicle owned by another person and which vehicle is not covered
by liability insurance through the owner.
The owner of a motor vehicle, which is registered or required to be
registered in this State, who either operates or permits such motor vehicle
to be operated and does not have in full force and effect the financial
64 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
responsibility required by Article 13 of Chapter 20 of the General Statutes
of North Carolina would be guilty of violating G. S. 20-313 and subject
to punishment provided thereby.
A justice of the peace would not have jurisdiction to try any person
violating the provisions of G. S. 20-313.
18 June 1963
Motor Vehicles; Red Lights on Automobiles Owned by Members op
Rescue Squads
Use of red lights on privately owned automobiles of members of rescue
squads are prohibited and the operator of rescue squad trucks must comply
with speed restrictions and regulations.
9 March 1964
Motor Vehicles ; Registration ; Air Compressors and Welding Machines
Permanently Mounted on Wheels for Transporting From One Job to
Another
An air compressor or welding machine permanently mounted on wheels
for the transporting of same from one job to another is not subject to the
registration laws of Chapter 20 of the General Statutes of North Carolina,
unless the same is placed upon a trailer for such transportation, in which
event the trailer would be subject to registration.
24 August 1962
Motor Vehicles; Registration; Dealer's Tags
A person who operates a motor vehicle owned by a dealer and displaying
dealer tags for the purpose of road testing it must have in his possession a
permit from the dealer for a period not to exceed 96 hours, unless accom-panied
by the dealer or an employee of the dealer. Operation without the
permit is in violation of the motor vehicle registration laws, and a dealer
who knowingly permits such operation has himself violated the law.
5 July 1962
Motor Vehicles; Suspended Sentence; Suspension of License
A Recorder's Court Judge may as a condition of suspension of a sentence
prohibit the defendant from operating a motor vehicle for a reasonable
period of time.
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 65
MUNICIPAL CORPORATIONS
7 May 1964
Municipal Corporations; Abandonment of Streets within Newly
Annexed Areas by the Highway Commission
The State Highway Commission under G. S. 136-66.2 (f) can abandon
streets which Avere not within municipalities or were not on the State
Highway System as of July 1, 1959, without the consent of the municipality.
29 May 1964
Municipal Corporations; Acquiring Property Outside Corporate Limits
FOR Public Park and Receational use
A municipality may accept property outside its corporate limits for
park purposes when said park is operated in a governmental capacity for
the direct benefit of the citizens of the m.unicipality.
31 July 1962
Municipal Corporations; Acquisition of Personal Property;
Lease With Option to Purchase
A municipality may acquire personal property by lease with option to
purchase.
19 August 1963
Municipal Corporations; Acquisition of Sewer Easement by Adverse
Possession
A municipality may acquire a sewage easement by prescription if it can
prove all elements necessary to be shown as in the case of the acquisition of
title to real property by adverse possession. The municipality must have
been in possession for a period of at least twenty years, unless otherwise
provided in the municipal charter, and must bear the burden of proving
that the user was adverse rather than permissive.
4 March 1963
Municipal Corporations; Ad Valorem Taxes; Penalty for Late Listing
The Machinery Act provides a penalty of 10% for late listing of property
for ad valorem taxes, with a minimum penalty of $1.00.
4 April 1963
Municipal Corporations; Amendment of City Charter; Construction
OF City Streets
G. S. 160-200, Subsection 11, gives a municipal corporation control over
the streets in the municipal corporation.
66 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
Article VII, Subsection 13 of the Constitution, states that the General
Assembly shall have control over the acts of a municipal corporation.
6 September 1962
Municipal Corporations; Appropriation from Nontax Funds for
Recreational Purposes; Purchase op Athletic Uniforms
A municipality may law^fully spend nontax funds to purchase athletic
uniforms for Little League ballplayers organized in the municipality.
30 October 1963
Municipal Corporations; Authority to Give, Sell or Lease Municipal
Property to Chamber of Commerce; Erection of Building Owned by
Chamber of Commerce on City Property
A municipality is not authorized to donate, sell or lease property held in
trust for the city or proprety devoted to a governmental use. A municipality
may not donate its property or grant privileges to one class of persons not
to be enjoyed by all except in consideration of public service.
26 September 1962
Municipal Corporations; Authority to Purchase Insurance in Mutual
Insurance Companies
Counties, municipalities, and boards of education may purchase insurance
in mutual insurance companies.
31 January 1964
Municipal Corporations; Barber Shops; Regulation of Hours
Municipalities have authority to regulate the hours which barber shops
operate.
15 May 1964
Municipal Corporations; Civil Defense; Authority of City Council op
High Point and the Civil Service Commission of High Point as it
Relates to the Local Director of Civil Defense
Pursuant to Chapter 166 of the North Carolina General Statutes, the
local governing body of a political subdivision has the authority to hire and
remove the local civil defense director and this authority shall not be
delegated to any commission or agency within the political subdivision.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 67
15 February 1964
Municipal Corporations; Constitutional Law; Validity of Ordinance
OF Chapel Hill Regulating Picketing
A town ordinance regulating the time, place and manner of picketing is
a valid regulation of the use of the streets of the Town under authority
delegated to the Board of Aldermen by the General Assembly; the ordi-nance
does not violate freedom of speech and assembly as guaranteed by the
First Amendment and made applicable to the States through the Fourteenth
Amendment; the Ordinance is neutral and does not discriminate against
persons or groups because of race, color or creed; the ordinance does not
violate the Equal Protection Clause or the Due Process Clause of the
Fourteenth Amendment.
2 December 1963
Municipal Corporations; Counties; Water and Sewage Services;
Joint Projects
Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment
of water and sewer lines jointly by towns and any county to
industrial plant sites located outside the municipal limits of a town.
31 July 1963
Municipal Corporations; Counties; Water Supply; No Authority in
County to Compel Fluoridation
A board of county commissioners has no authority to compel a muni-pality
to fluoridate its water supply.
s 12 July 1963
Municipal Corporations; Drainage Districts; Applicability of County
Fiscal Control Act
Under the provisions of G. S. 153-114 (a), the County Fiscal Control Act
is applicable to drainage districts.
7 May 1964
Municipal Corporations; Drainage Districts; Powers of Commissioners,
Authority to Permit Use op Dikes by Private Persons as Haulways
FOR Lumbering Operations
Commissioners of a drainage district have no authority to give permis-sion
to a private person to transport timber and timber products over a
dike constructed and maintained by the drainage district.
68 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
3 September 1962
Municipal Corporations; Easement for Sewer Lines; Compensation
FOR Easement; No Right to Furnish Free Sewer Service
A municipality does not have authority to agree to furnish a certain
property owner sewer service free for an indefinite period as compensation
for the sewer line easement across the property.
3 December 1963
Municipal Corporations; Eminent Domain; Sewerage and Waterworks;
Condemnation of School Property by a Municipality for Sewage
System Purposes
In the exercise of a general power of eminent domain, a municipality
may condemn lands belonging to a county school board where the lands are
not in actual public use or not needed for school purposes, provided that the
public use to be established thereon will not destroy the existing use of
the remainder of the tract or interfere with the existing use to such an
extent as is tantamount to a further taking or destruction.
4 January 1963
Municipal Corporations; Extension of Corporate Limits; Annexation
Proceedings
The new annexation proceedings statutes for municipalities enacted as
Chapters 1009 and 1010 of the Session Laws of 1959 were not prospectively
repealed by the provisions of Section 11 of both acts as immaterially
amended in 1961 regardless of the later codification of the two basic acts
as Parts 2 and 3 of Article 36 of Chapter 160 of the General Statutes as the
same appear in the 1961 Cumulative Supplement to Volume 3C.
5 September 1962
Municipal Corporations; Extension of Corporate Limits; Meaning of
Word "Contiguous"
An area to be annexed by a municipality, which is connected to the exist-ing
boundaries of the municipality merely by the right-of-way of a State
highway, is not "contiguous" to the municipality within the meaning of
G. S. 160-452.
5 December 1962
Municipal Corporations; Fire Districts; Extension of Limits
The mere extension of a city's fire district so as to include an area zoned
differently than the area within the existing fire district does not auto-matically
extend the zoning classification of the existing fire district into
the new area.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 69
5 March 1964
Municipal Corporations; Fire Protection; Contract With County;
Municipal Liability Outside City Limits
When a municipality authorizes its fire department to answer a call
outside the city limits, the city has the same privileges and immunities as
if a call were being answered within the city limits.
2 January 1963
Municipal Corporations; Governing Boards of Municipalities are
Required to Keep a Record of all Meetings
Governing bodies of municipalities, including town clerks, are required to
keep a full and accurate journal of all its proceedings, which journal shall
be open to public inspection. See G. S. 160-269.
17 August 1962
Municipal Corporations; Industrial Development; Appropriation of
Funds for Advertising Purposes
Unless a local law provides otherwise, a municipality does not have
authority to expend public funds to advertise the city and attract industry
except pursuant to the provisions of Chapter 158 of the General Statutes.
24 July 1963
Municipal Corporations; Jails; Contracts to House Prisoners of
Another Town
A municipality has implied authority to contract with another municipal-ity
for use of its jail facilities.
28 November 1962
Municipal Corporations; Jurisdiction; Regulation of Railroad
Crossings; Railroad Crossing Protection
Municipalities have jurisdiction over requiring safety devices at railroad
crossings not on the State highway system, but the Highway Commission
has exclusive jurisdiction in this regard where crossings are on the high-way
system.
23 May 1963
Municipal Corporations; Meetings of City Council; Open Sessions;
Live Broadcasting of Proceedings
Under the general laws of this State, meetings of a city governing body
must be open to the general public.
70 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
29 November 1962
Municipal Corporations; Municipal Police Officers; Arrest of
Violators Outside Municipal Limits
A municipal police officer in hot pursuit of a person found to be violat-ing
the liquor laws of this State may pursue such violator beyond the
municipal limits and arrest the violator. G. S. 18-45 (o).
11 July 1962
Municipal Corporations; Officers; Residence Requirements of Chief
OF Volunteer Fire Department and City Policeman
A fire chief of a municipal volunteer fire department and a city police-man
are public officers and must be residents of the municipality in which
they serve.
-
24 February 1964
Municipal Corporations; Ordinances; Authority op City Council to
Enact So-Called Public Accommodations Ordinance
A municipal corporation is not legally authorized to enact a public accom-modations
ordinance requiring the owner or operator of a hotel, motel,
restaurant or theater to admit persons to the use of his accommodations
and facilities regardless of race, color or creed; such an ordinance, if
enacted, would take away the individual choice of the owner or operator
and would be contrary to our trespass law (G. S. 14-134).
16 December 1963
Municipal Corporations; Ordinances; Subdivisions
An incorporated city or town which has been exempted from the pro-visions
of G. S. 160-226, et seq., pertaining to subdivision ordin

BIENNIAL HEP
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BIENNIAL REPORT
OF THE
ATTORNEY GENERAL
OF THE
State of North Carolina
VOLUME 37
1962-64
THOMAS WADE BRUTON
ATTORNEY GENERAL
Harry W. McGalliard
Peyton B. Abbott
Ralph Moody
Deputy Attorneys General
Lucius W. Pullen*
Harrison Lewis
G. Andrew Jones, Jr.*
Charles D. Barham, Jr.
Charles W. Barbee, Jr.
James F. Bullock
Ray B. Brady
Richard T. Sanders
Assistant Attorneys General
Resigned
LETTER OF TRANSMITTAL
1 January 1965
To His Excellency
Dan K. Moore, Governor
Raleigh, North Carolina
Dear Sir:
In compliance with Article III, Section 7 of the Constitution, I herewith
submit the report of the Department of Justice for the biennium 1962-64.
Respectfully yours,
Thomas Wade Bruton,
Attorney General
6
LIST OF ATTORNEYS GENERAL SINCE THE
ADOPTION OF CONSTITUTION IN 1776
Term of
Office
Avery, WaightsJll 1776-1779
Iredell, James 1779-1782
Moore, Alfred 1782-1790
Haywood, J. John 1791-1794
Baker, Blake 1794-1803
Seawell, Henry 1803-1808
Fitts, Oliver 1808-1810
Miller, William 1810-1810
Burton, Hutchins G 1810-1816
Drew, William 1816-1825
Taylor, James F 1825-1828
Jones, Robert H 1828-1828
Saunders, Romulus M 1828-1834
Daniel, John R. J 1834-1840
McQueen, Hugh 1840-1842
Whitaker, Spier 1842-1846
Stanly, Edward 1846-1848
Moore, Bartholomew F 1848-1851
Eaton, William 1851-1852
Ransom, Matt W 1852-1855
Batchelor, Joseph B 1855-1856
Bailey, William H 1856-1856
Jenkins, William A 1856-1862
Rogers, Sion H 1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M 1870-1872
Hargrove, Tazewell L 1872-1876
Kenan, Thomas S 1876-1884
Davidson, Theodore F 1884-1892
Osborne, Frank 1 1892-1896
Walser, Zeb V 1896-1900
Douglas, Robert D 1900-1901
Gilmer, Robert D 1901-1908
Bickett, T. W 1909-1916
Manning, James S 1917-1925
Brummitt, Dennis G 1925-1935
Seawell, A. A. F 1935-1938
McMullan, Harry 1938-1955
Rodman, William B., Jr 1955-1956
Patton, George B 1956-1958
Seawell, Malcolm B 1958-1960
Bruton, Thomas Wade 1960-
^0
EXHIBIT I
Civil Actions Pending in State and Federal Courts
During the Biennium 1962-64
. Number of
Cases
Pending in the Superior Court of North Carolina
State Taxes 55
Motor Vehicle Drivers' Licenses 55
Condemnation Proceedings 1,374
Utilities Commission Cases 8
Beer and Wine License Revocations 15
Other 46
TOTAL 1,553
Pending in the Supreme Court of North Carolina
State Taxes 2
Other 18
TOTAL 20
Pending in the United States District Courts
State Taxes 2
Other 24
TOTAL 26
. Pending in the United States Supreme Court
Other 1
Civil Cases Disposed of During the Biennium 1962-64
In the Superior Court of North Carolina 792
In the Supreme Court of North Carolina 33
In the Supreme Court of the United States 7
In the District Courts of the United States 113
Before the North Carolina Industrial Commission 167
Habeas Corpus Petitions Disposed of in the
Superior Court 412
Habeas Corpus Petitions Disposed of in the Federal
District Court 210
TOTAL 1,734
BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
EXHIBIT II
Criminal Cases Disposed of in the North Carolina Supreme
Court During the Biennium 1962-64
:
Abandonment-Nonsupport 3
Assault 3
Assault with Deadly Weapon 5
Assault with Intent to Rape 3
Breaking-Entering-Larcency-Receiving 9
Carnal Knowledge 1
Crime Against Nature 3
Conspiracy 3
Damage to Real Property 1
Embezzlement . . . 1
False Pretense 2
Forgery 5
Gambling 1
Incest 1
License Violation 1
Manslaughter 12
Murder First Degree 4
Murder Second Degree 2
Peeping Into Room Occupied by Woman 1
Perjury 2
Prostitution 1
Public Drunkeness 2
Rape 2
Robbery 8
Trespass 5
Unlawful Practice of Law 1
Violating City Ordinance 1
Violating Liquor Laws 6
Violating Motor Vehicle Laws 3
Violating Rules of the Road 11
Violating Security Act 1
Violating Suspended Sentence 3
Worthless Check 2
TOTAL . .109
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7
Number of Cases dismissed on motion during the
Biennium 1962-64 4
Number of Petitions for Stay of Judgment denied
during the Biennium 1962-64 3
Number of Petitions for Writ of Certiorari denied
during the Biennium 1962-64 146
Number of Petitions for Writ of Certiorari
allowed during the Biennium 1962-64 18
Number of Petitions for Writ of Error Coram Nobis
denied during the Biennium 1962-64 2
Number of Petitions for Writ of Habeas Corpus
denied during the Biennium 1962-64 12
Number of Petitions for Writ of Mandamus
denied during the Biennium 1962-64 7
Fees Transmitted by the Attorney General to the
State Treasurer During the Biennium 1962-64 . . $485.00
8 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
SUMMARY OF ACTIVITIES
Staff Personnel
There have been very few changes in the staff personnel since the
publication of the Biennial Report of 1960-62, although there has been an
increase in personnel.
Attorney General T. W. Bruton, Deputy Attorneys General Harry W.
McGalliard, Peyton B. Abbott and Ralph Moody, and Assistant Attorneys
General Harrison Lewis, Charles D. Barham, Jr., Charles W. Barbee, Jr.,
and James F. Bullock served throughout the biennium. In addition to those
serving throughout the biennium Assistant Attorneys General Ray B.
Brady and Richard T. Sanders were serving at the close of the biennium.
Harold Lee Waters was serving as Revisor of Statutes at the close of
the biennium.
Staff Attorneys who were serving at the close of the biennium w^ere as
follows: Parks H. Icenhovir, William R. Pierce, George A. Goodwyn, Ralph
M. Potter, Theodore C. Brown, Jr., John W. Twisdale, William B. Ray,
Samuel M. Booth, T. Buie Costen, Claude W. Harris, I. B. Hudson, Jr.,
Andrew H. McDaniel, William W. Melvin, William W. Merriman, III,
Millard R. Rich, Jr., Henry T. Rosser, Eugene A. Smith, Robert S.
Weathers, Thomas B. Wood, and William F. Briley.
Members of the secretarial staff who were serving at the close of the
biennium are as follows: Miss Elizabeth N. Flournoy, Mrs. Jean C. Spence,
Miss Aida Epps, Mrs. Frances E. Gill, Mrs. Carolyn D'Alio, Mrs. Katharine
L. Dowd, Mrs. Cleo A. Purcell, Miss Judith K. Edwards, Mrs. Alice Gorham,
Mrs. Edna B. Jerome, Mrs. Helen W. Bagwell, Mrs. Barbara C. Owens,
Mrs. Blondell Johnson, Mrs. Ruby Rickm.an, Mrs. Grace Gardner, Mrs.
Mary H. Green, Mrs. Margaret P. Roberts, Mrs. Priscilla G. Sandy, Miss
Shirley J. White, Mrs. Betty Y. Jeffreys, Mrs. Marilyn Lee, Miss Judy A.
Underwood, Miss Carolyn R. Kearney, Mrs. Barbara H. Tucker, Miss
Marie McLaurin, Mrs. Frances C Regan, Mrs. Jeanne M. Whitten, Mrs.
Brenda M. Johnson, and Mrs. Colleen G. Hinton, Budget Officer.
Highway Division of Attorney General's Office
During the past biennium, the Attorney General, in the discharge of his
responsibilities to represent the State Highway Commission, its Chairman
and Director, has handled a work load of more than double the volume
handled during the previous biennium. This volume is due in part to the
expanded highway program, including the construction of the Interstate
Highway System, and in part is due to the condemnation procedure enacted
by the 1959 session of the General Assembly, effective July 1, 1960, under
which the Commission is required to institute condemnation actions in the
Superior Court on those matters which have not been settled prior to the
letting of the contract for construction.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9"
At the close of the previous biennium, five hundred ninety-one (591)
suits were pending. During the biennium, one thousand one hundred forty-one
(1,141) new suits were instituted against or by the Highway Commis-sion,
six hundred twenty (620) were disposed of, one hundred forty-six
(146) of which were terminated by jury trials in the Superior Court. The
balance were settled either prior to or during trial. One thousand three
hundred seventy-four (1,374) condemnation and related cases are pending
as of the close of the biennium.
The State Highway Commission has been represented in the Supreme
Court in fifteen (15) cases during the period by members of this staff. At
the conclusion of the biennium, there are five (5) cases involving the State
Highway Commission pending in the Supreme Court. During the latter
part of the biennium, the number of cases opened and disposed of have
been about equal and it is anticipated that during the succeeding biennium
this trend will continue due to an increase in the staff of this division.
During the biennium, the members of this staff participated with the
administrative personnel of the Highway Commission in the determination
of a large number of claims brought by highway contractors arising out
of the contract work carried on by the Commission. Under a 1963 statute,
these claims are now being determined in Superior Court in a civil action
rather than before an administrative board of review, and it is anticipated
that a more efficient disposition of these claims can now be made. The staff
has also represented the Commission in the adjustment of claims for dam-age
to Commission property and other miscellaneous matters.
In addition, members of the staff have drafted, reviewed or approved
approximately fifteen thousand (15,000) leases, deeds, right-of-way claims,
encroachment contracts, miscellaneous agreements with utilities, railroads,
municipalities and other governmental agencies, and construction contracts.
Throughout the biennium, the staff has had the very complete cooperation
of the State Highway Commission, its Chairman, Director and administra-tion
in the prosecution of the Attorney General's work for the State
Highway Commission.
Tort Claims and Workmen's Compensation
The State Tort Claims Act, which was enacted in 1951, imposed upon
the Attorney General the duty of representing the various State depart-ments,
institutions and agencies, with the exception of the State Highway
and Public Works Commission. In 1957, when the Highway and Public
Works Commission was separated by the General Assembly, the Attorney
General assumed the duty of representing this department in like manner.
During the biennium from July 1, 1962, to July 1, 1964, a total of 773
tort claims were filed against the various departments, institutions and
agencies of the State. Approximately 50% of this number were handled by
the Attorney General. About one-half of these were settled, and the re-mainder
were heard before the North Carolina Industrial Commission, as
provided by law.
10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
In 1959, the General Assembly enacted a statute requiring all depart-ments,
institutions and agencies of the State to acquire liability insurance
on all State-owned motor vehicles. (Chapter 1248, Session Law, 1959).
The effective date of this Act was July 1, 1959.
As a result of this Act an undetermined number of tort claims against
the State, in which State-owned motor vehicles were involved, were settled
by the insurance carrier for the various departments, institutions, and
agencies during the second half of the biennium.
In addition to its duty of representing the various departments, institu-tions
and agencies of the State in claims filed under the Tort Claims Act,
the Attorney General represents the State in disputed Workmen's Com-pensation
claims filed by State employees. During the past biennium
approximately 359 disputed claims involving State employees were heard
by the Commission.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11
DIGEST OF OPINIONS
AGRICULTURE
7 September 1962
Agriculture; Agricultural Fairs; Circuses; Conflicts in Dates
A circus does not come within the purview of G.S. 106-516.1, which
prohibits the exhibition of carnivals or shows "of like kind" within 30 days
prior to a regularly advertised agricultural fair. Circus performances as
they relate to conflicts in dates with agricultural fairs are governed by
G.S. 106-519 and G.S. 105-38.
12 August 1963
Agriculture; Checked and Producer Eggs
A check or cracked egg is not a "fresh" egg so as to satisfy the require-ments
for a Grade A egg, nor can a producer egg go through a segregation
procedure and be labelled as an "ungraded" egg.
4 October 1963
Agriculture, Dept. of; Dairy Laws, Minimum Standards in Grading
and Testing of Milk and Dairy Products; Definition of Milk
Misbranding
The minimum standards of the Board of Agriculture as to the butterfat
content of milk, skimmed milk and chocolate milk are controlling through-out
the State; local boards of health may adopt more stringent regulations
in regard to such content but such regulations should not conflict with the
Board of Agriculture's minimum standards; a milk container having
printed on it "chocolate milk" and under this the word "skimmed" is mis-branded
for the reason that in this particular case the standard as to
butterfat was anything less than 3^/4%, whereas the standard of the Board
of Agriculture is not more than 1% butterfat.
10 December 1963
Agriculture; Egg Law; Egg Distributors; Failure to Obtain
Distributor's Permit
The Department of Agriculture has the right and authority under the
law to stop the sale of a distributor's eggs on the market when such dis-tributor
has not secured a distributor's certificate as required by G.S.
106-245.3, and any distributor who violates this statute shall be found
guilty of a misdemeanor and upon conviction shall be fined not more than
fifty dollars or imprisoned not more than thirty days.
12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
6 February 1964
Agriculture; Unfair Practices by Handlers of Farm Products,
Poultry and Eggs
G. S. 106-496, relating to unfair practices by handlers of farm products,
would include the handling of poultry and eggs.
ABC ACT
24 August 1962
ABC Act; Closing of ABC Stores for County Bond Election
All ABC stores are required to be closed on election day in a county hold-ing
a county-wide special bond election.
18 June 1963
ABC Act; County ABC Board Selling Surplus Personal Property
No statutory authority for county ABC Board to dispose of personal
property by sale or otherwise and no statutory procedure is provided for
the sale of its personal property. Nevertheless, it is felt that county ABC
Boards have implied authority to dispose of surplus, obsolete, or unused
property by public auction or upon sealed bids after due advertisement.
20 June 1963
ABC Act; Elections; Municipal ABC Election by Special Act;
Beer and Wine Election
A county or municipal election on the question of legal sale of beer or
wine or both may not be held on the same date of a special liquor election
in a municipality, or within 60 days of any general, special or primary
election in the county or any municipality therein, until after July 1, 1963.
G. S. 18-124 (f ) specifies what conditions must be met in order for a beer
and/or wine election to be held on the same date as an election for ABC
stores.
9 September 1963
ABC Act; Municipalities; No Authority to Call Liquor Election
Without Enabling Act
There is no general law authorizing a municipality to call a liquor elec-tion
either with or without a petition.
.37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13
31 August 1962
ABC Act; Wholesaler of Malt Beverages; Wholesaler License
A person, firm or corporation that sells the beverages enumerated in
G. S. 18-64 (a), in barrels, bottles or other containers, in quantities of not
less than one case or container to a customer for resale, is a wholesaler
and subject to a wholesaler's license as provided in the Beverage Control
Act.
ABC BOARD
18 May 1964
ABC Board; Authority of County Board to Erect a Building for
Purposes of Selling and Storing Alcoholic Beverages
G. S. 18-45(8) grants to the county ABC Boards the implied power to
erect and construct buildings on land purchased by the said county ABC
Boards for the purposes of selling and storing alcoholic beverages.
29 April 1964
ABC Board; Authority of Local Board to Make Donation to Subsidize
A Jitney Bus Operation
A local ABC board may not appropriate funds to subsidize a jitney bus
operation in the vicinity of an ABC store.
ALCOHOLIC BEVERAGES
28 August 1963
Alcoholic Beverages,- Beer and Wine; Transporting Beer in
Taxicab, Delivery Truck; Possession, prima facie Rule for Sale
There is no statutory limit upon the quantity of beverages, enumerated
in G.S. 18-64, which an individual may purchase, transport and possess.
However, possession of more than five gallons of beer (15^/^ gallons of
draft beer in wet area) raises a presumption that it is for purpose of sale.
G.S. 18-32.
Any vehicle transporting such beverages on the public highways must
comply with G.S. 18-66 as to registration, certificate for transportation,
etc., except when the transporting is by an individual for his own use.
29 November 1962
Alcoholic Beverages; Municipal Police Officers; Arrest of
Violators Outside Municipal Limits
A municipal police officer in hot pursuit of a person found to be violating
14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
the liquor laws of this State may pursue such violator beyond the municipal
limits and arrest the violator. G.S. 18-45 (o).
25 June 1964
Alcoholic Beverages; Private Lockers in Club Located in Dry County
It is illegal under any and all circumstances to keep alcoholic beverages
in a private locker at a clubhouse in a dry county.
30 November 1962
Alcoholic Beverages; Sales on Airplanes Operating Over Routes
Crossing State of North Carolina
With the exception of beer and wine, with not more than 14% of alcohol
content sold by a licensed retailer, no alcoholic beverage of any kind may
be sold in any aircraft passing over or through the State of North Carolina.
ARCHIVES AND HISTORY
23 October 1963
Archives and History, Dept. of; State Capitol Building;
Placement of Bronze Plaques
The disposal of surplus property by State agencies and departments is
under the control of the Department of Administration.
BANKS, BANKING
6 August 1962
Banks; Excise Taxes; Deduction; Amortization op Bond Premiums
Not Deductible
No annual deduction for amortization of bond premium is allowable in
computing income taxes due under Article 4, Chapter 105 of the General
Statutes, nor is any annual deduction for amortization of bond premium
allowable in computing the excise tax on banks provided by Article 8C,
Chapter 105 of the General Statutes, regardless of the purpose for which
the bonds are held.
2 December 1963
Banks; Inactive Accounts; Escheats; Service Charges
The right of a bank to make service charges with respect to a depositor's
account is dependent upon the bank's contractual relationship with the
depositor.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15
17 February 1964
Banks; Incorporation of an Existing Statute into Another Statute
BY Descriptive Reference; Authority of State Banks to Issue Capital
Notes or Debentures
State banking corporations are authorized under the banking laws of this
State to issue capital notes or debentures under regulations prescribed by
the Banking Commission and supervised and administered by the Commis-sioner
of Banks.
2 October 1963
Banks; National Banks; Trust Departments; No Supervision by State
Commissioner
The North Carolina State Department of Banks does not have any super-visory
pow^ers with respect to trust accounts of national banks.
25 June 1964
Banks; Sale of Checks and Money Orders
Any person, firm or corporation other than a bank may not engage in the
business of selling money orders or checks unless duly licensed by the Com-missioner
of Banks to engage in this special business.
22 August 1963
Banks; Small Loan Act; Consumer Finance Act; 1963 Insurance
Premium Financing Act; Construction of Certain Provisions
(1) A licensee under the Consumer Finance Act may engage in the busi-ness
of acquiring insurance premium finance agreements from insurance
premium finance companies and may carry on such business in the same
place as its lending business because G. S. 53-172 specifically exempts install-ment
paper dealing from its prohibition against carrying on additional
types of business in a loan office.
(2) If the same corporaton is licensed both under the Consumer Finance
Act and the Insurance Premium Financing Act and attempts to operate
pursuant to the Insurance Premium Financing Act, such premium financ-ing
business could not, because of G. S. 53-172, be carried on in the same
office as the lending business.
6 March 1963
Banks; What Constitutes Banking; Money Order Services;
Travelers Checks
It would violate the State banking laws for any person or firm other than
a duly chartered bank to operate a money order or travelers check service.
16 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
BIDS; BIDDING
8 November 1963
Bids; Bidding; Counties; Public Bidding Statutes; Rejection of
Lowest Bid
In considering bids for motor vehicles which meet all specifications, a
county has no authority to reject the lowest bid unless it determines that
the agency submitting the lowest bid was not responsible, taking into con-sideration
quality, performance and the time specified in the proposals for
the performance of the contract.
2 October 1962
Bids; Bidding; Public Bidding; Medical Care Commission;
"Lowest Responsible Bidder"
In determining "the lowest responsible bidder" for public bidding pur-poses
under G. S. 143-129, a discount for payment within a limited period
offered by a bidder should be taken into account.
BONDS, BONDSMEN
3 January 1964
Bonds; Bondsmen; Runners; Commissioner of Insurance; Regulation
OF Rates and Charges
The Commissioner of Insurance has no authority under Chapter 85A of
the General Statutes of North Carolina to promulgate rating schedules or
to regulate the charges which professional bondsmen and property bonds-men
make for their services.
18 December 1962
Bonds; Clerk of Court; Statement of Conditions; Cancellation Clause
Bond of Clerk of Superior Court must be conditioned upon requirements
set forth in G. S. 2-3 ; G. S. 109-3 requires such bond to be for term of office,
therefore non-cancellable.
BUSINESS AND COMMERCE
2 December 1963
Business and Commerce; Debt Adjustment Services;
Prohibited by Statute
Engaging in the business of carrying on a debt adjustment, debt con-solidation
and debt payment service for individuals was made unlawful by
Chapter 394 of the Session Laws of 1963.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL IT
CEMETERIES
13 September 1962
Cemeteries; Church Cemeteries; Extension of Church Building
Over Abandoned Cemetery
A church may not enlarge its church buildings to cover an abandoned
cemetery without first giving the statutory notice and removing the graves
as provided by Section 65-13 of the General Statutes.
24 April 1963
Cemeteries; Removal of Grave in City Cemetery by City
A municipality w^ould not be performing a governmental function in open-ing
a privately-owned grave in a city cemetery for the purpose of removing
the remains to another grave in said cemetery.
CITIZENSHIP
28 November 1962
Citizenship; Conviction of a Crime in Another State; Effect
This office has always taken the view that the North Carolina Constitu-tional
provisions as to loss of citizenship for commission of crime apply only
to convictions for violation of statutes of this State.
' 27 May 1963
Citizenship; Pardon; Effect on Right to Vote and Hold Elective
Office
A person who has been convicted of a felony is disqualified as a voter
and is not eligible to hold public office, under Article VI, Sections 1, 2, 7
and 8 of the North Carolina Constitution, until his citizenship has been
restored as provided in Chapter 13 of the General Statutes. The fact that
a disqualified person was pardoned by the Governor after such person's
election, but prior to taking the oath of office, does not eliminate the neces-sity
of having citizenship restored by the statutory procedure. A pardon
does not ipso facto restore citizenship in North Carolina. One disqualified
to hold office as of the date of his apparent election is not automatically
entitled to hold such office by subsequent restoration of citizenship.
7 August 1963
Citizenship; Restoration of Citizenship After Conviction of Felony;
Effect of Parole; Time of Application
A parolee cannot apply for restoration of citizenship under Chapter 13
of the General Statutes until the applicant has been discharged from
parole.
18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
4 February 1963
Citizenship; Right of Person Convicted of Federal Offense to
Hold County Office
Conviction of a North Carolina citizen of a felony in a Federal court does
not cause such person to lose his North Carolina citizenship.
CIVIL DEFENSE
10 January 1964
Civil Defense; Authority to Use School Buildings and Other Facili-ties
Without the Specific Consent of the Appropriate County Board
OF Education
The County Commissioners of a particular county may authorize the use
of school buildings and other facilities for Civil Defense purposes during
an emergency as defined by Chapter 166 of the North Carolina General
Statutes, even though no specific consent has been granted by the County
Board of Education.
28 April 1964
Civil Defense; Workmen's Compensation for Volunteer
Civil Defense Workers
A volunteer Civil Defense w^orker, who is not otherwise an employee of
the State government, or a local governmental unit, who performs his
services in a duly authorized Civil Defense exercise or training period so
as to better the Civil Defense readiness, would not be allowed to receive
workmen's compensation benefits in the event said volunteer Civil Defense
worker is injured or killed while performing such authorized duties.
CIVIL PROCEDURE
8 May 1963
Civil Procedure; Service of Civil Summons on Sundays
Section 103-3 of the General Statutes make it lawful to serve a civil
summons on Sunday.
29 April 1963
Civil Procedure; Waiver of Personal Appearance
Court officials and law enforcement officers are not permitted to waive
appearance of defendants; to be allowed to waive appearance, there must
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19
be a warrant issued and served and appearance personally waived in writ-ing
by defendant or through his counsel; the case should be properly
docketed, evidence heard and judgment rendered.
CONSTITUTIONAL LAW
15 February 1964
CONSTITUTIONAL LAW; MUNICIPAL CORPORATIONS; VALIDITY OF ORDINANCE
OF Chapel Hill Regulating Picketing
The Chapel Hill Ordinance regulating the time, place and manner of
picketing is a valid regulation of the use of the streets of the Town under
authority delegated to the Board of Aldermen by the General Assembly;
the ordinance does not violate freedom of speech and assembly as guaran-teed
by the First Amendment and made applicable to the States through
the Fourteenth Amendment; the Ordinance is neutral and does not dis-criminate
against persons or groups because of race, color or creed; the
ordinance does not violate the Equal Protection Clause or the Due Process
Clause of the Fourteenth Amendment.
17 February 1964
Constitutional Law; Religion and Public Education; Prayer in Public
Schools; Prayer on a Voluntary Basis
The reading of the Bible and recitation of prayers in the public schools
can be properly engaged in on a voluntary basis. It would be constitu-tionally
invalid if such reading of the Bible and saying of prayers were
by order of a school board or other State agency.
CONTRACTS
3 June 1963
Contracts; Insurance; Validity of Certified Copy of General
Power of Attorney
Opinion given that a certified copy of the General Power of Attorney
issued in conjunction with a guaranty contract by an insurance company
is valid and binding upon the insurance company if the corporate seal is
attached thereto, citing G. S. 55-36 (c) and (d).
12 September 1962
Contracts; Lease; Execution
A lease for a term of years complies with G. S. 22-2 if in writing and
signed by the party to be charged thereunder, and is not governed by re-quirements
of law for conveyance of real property.
20 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
CORPORATIONS
28 February 1964
Corporations; Foreign; Doing Business; Pension Trusts;
Banking Institutions
A corporation organized under the laws of another state and engaged
in the banking and trust business cannot qualify to do business in North
Carolina. Therefore, such foreign banking institution, as trustee under a
trust indenture, could not purchase real property in this State under a plan
whereby the bank would immediately after purchase lease back the prop-erty
to the seller under a long term lease agreement.
COUNTIES
20 July 1962
Counties ; Building and Plumbing Inspectors ; Agreement Between
County and Municipalities; N. C. Building Code
A Board of County Commissioners may enter into contracts with munici-palities
within the county to support a joint Building Inspection Depart-ment.
25 September 1963
Counties; Community Colleges; Authority of County Commissioners
TO Convey Surplus County Property to Community College
A county owning surplus real property has the authority to convey such
surplus real estate to a community college located in the county since such
conveyance is supported by valid consideration in discharge of the county's
legal duty to furnish real estate as a capital outlay item in the local budget
for such college; such conveyance also is for a public purpose and is a
transfer from one county governmental unit to another governmental unit.
17 September 1962
Counties; Condemnation; Authority to Condemn Property for County
Buildings
Boards of county commissioners are possessed only with those powers
which have been expressly conferred or which are necessarily implied for
the proper exercise of the duties imposed upon them and may not exercise
the power of condemnation unless expressly conferred by the Legislature,
or the power of condemnation is necessarily inferred from the particular
act involved.
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 21
10 March 1964
Counties; County Commissioners; Authority to Request County Board
OF Elections to Hold Supplemental School Tax Election; Public
Schools; Items for which Supplemental Tax may be Used
Elections for the purpose of determining the question of a supplemental
school tax can be held in each school district in a county, and where the
school district lines coincide with the township lines a reference to such
fact in a petition is a sufficient description; where the petition uses the
words of a statute in designating the objects of expenditure for such
supplemental tax, this is sufficient designation of the objects; in the absence
of an authorizing statute the board of county commissioners should hold
the election on the question of the approval of a supplemental tax.
27 February 1963
Counties; County Commissioners; Chairman of a Public Board;
Authority of the Chairman to Vote a Second Time to Break a Tie
There is no statutory authority which authorizes the chairman of a board
of county commissioners to cast the deciding vote in case of a tie after
he has already voted as a member of the board. In the absence of a rule
which provides for double voting, the chairman of a board of county com-missioners
is entitled to vote as a member of the board and is not entitled
to vote a second time to break a tie. See MARKHAM v. SIMPSON, 175
N. C. 135, and STATE v. LONG, 186 N. C. 516.
26 July 1962
Counties; County Finance Act; Bond Ordinance; Proceeds of Bonds
It is not necessary that a bond ordinance state in detail the use to which
the proceeds will be put so long as the proceeds are used in furtherance of
the general purpose set out in the bond ordinance.
14 November 1963
Counties; County Office Building; Authority to Construct
OR Acquire
A county has authority to acquire, purchase and construct a county
office building to house offices, departments, bureaus and agencies of the
county government.
23 August 1962
Counties; County Planning Boards; Water Resources;
Ground Water Survey
Expenditure of funds for county planning purposes pursuant to G. S.
153-9 (40) is a necessary expense in the constitiitional sense.
22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
26 February 1964
Counties; Director of Public Trust Contracting for His Own Benefit;
Account in Bank of which One of County Commissioners is
Vice-President
G. S. 14-234 exempts public officials transacting business with a bank
from its provisions and the county may maintain a checking account in a
bank where one of the commissioners is vice-president.
20 June 1963
Counties; Expenditure of Funds; Appropriation to Develop Private
Property
A county has no authority to expend public funds to develop private
property.
7 December 1962
Counties; Expenditure of Funds: Public Purpose; Construction of
Building to be Sold to Veterinarian
A county does not have authority to use public funds to build a building
for a private individual and then sell the same to the private individual
on a time basis.
. . 26 September 1962
Counties; Insurance; Authority to Purchase Insurance in Mutual
Insurance Companies
Counties, municipalities, and boards of education may purchase insur-ance
in mutual insurance companies.
8 May 1963
Counties; Insurance; Group Life and Hospital Insurance
A county has authority to pay premiums for group life insurance and
hospital and medical insurance for county employees, and the providing of
such a "fringe" benefit really amounts to a salary supplement to the
extent of the amount of the premium involved.
31 July 1963
Counties; Municipalities; Water Supply; No Authority in County to
Compel Fluoridation
A board of county commissioners has no authority to compel a munici-pality
to fluoridate it§ water supply.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23
2 December 1963
Counties; Municipalities; Water and Sewage Services; Joint Projects
Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment
of water and sewer lines jointly by towns and any county to
industrial plant sites located outside the municipal limits of a town.
18 December 1962
Counties; Necessary Expense; Use of Tax Money for County Audi-torium;
Bond Issue; Use of Nontax Funds for Preliminary Expenses
Establishment of a public auditorium by a county is for a public pur-pose,
but expenditures therefor are not necessary expenses; non-tax funds
may be used for preliminary expense, but approving vote of people is
necessary before issuing bonds or levying taxes to pay therefor.
8 November 1963
Counties; Public Bidding Statutes; Rejection of Lowest Bid
In considering bids for motor vehicles which meet all specifications, a
county has no authority to reject the lowest bid unless it determines that
the agency submitting the lowest bid was not responsible, taking into con-sideration
quality, performance and the time specified in the proposals for
the performance of the contract.
30 October 1963
Counties; Water and Sewer Systems; Acquisition of Right of Way
The statutory right of a county to acquire and maintain water and sewer
systems includes the authority to acquire the necessary rights of way there-for.
COURTS
18 March 1963
Courts; Costs; City Police Officers; Witness Fees
Under the general law, G. S. 6-52, a law enforcement officer who is on a
salary basis is not entitled to witness fees for attending court with respect
to cases with which he is officially connected.
2 November 1962
Courts; Costs; Liability of County in Criminal Actions
Trial judges should determine insolvency of convicted defendant before
county liability for pajrment of costs arises under G. S. 6-36.
24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
27 August 1962
Courts; Domestic Relations Courts; Disclosure of Confidential
Information; Court Costs
An attorney representing a child or children in the Domestic Relations
Court has the legal right to read and examine the court summary and also
the case worker's or probation officer's report and any other information of
a confidential nature if the same have been made available to the judge
of the court. But a Judge of the Domestic Relations Court has no discretion
to reduce the amount of costs, except in cases where the amount of cost is
strictly a matter of law.
30 November 1962
Courts; Witnesses; Attendance at Criminal Terms;
Re-issuing Subpoenas
The effect of G. S. 7-73.1 as to attendance of witnesses at succeeding
terms of criminal courts is to repeal the effect of G. S. 8-63, in that wit-nesses
are no longer required to continue attending from term to term until
dismissed when a case has been once continued, but are to be re-subpoenaed
for a day certain at the next term when the trial is scheduled.
CRIMINAL LAW
3 October 1963
Criminal Law; Embezzlement; Borrowed Goods; Leased Goods;
Mortgages and Deeds of Trust; Sale of Mortgaged Property
If a person borrows or leases personal property from another and sells
it without permission, he is guilty of embezzlement.
26 September 1962
Criminal Law; Evidence Obtained Without Valid Search Warrant
Evidence obtained through use of an invalid search warrant is inad-missible.
10 August 1962
Criminal Law; Marriage Laws; Bigamous Marriages
In North Carolina a bigamous marriage is not voidable but void.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25
7 February 1964
Criminal Law; Murder; Time of Death; Lapse of More Than a Year
AND A Day
In this State a person may not be convicted of murder when the fatal
wound was inflicted more than a year and a day before death occurred.
10 October 1962
Criminal Law; Procedure; Evidence Obtained With Valid
Search Warrant
Evidence obtained as a result of a search made pursuant to a proper
search warrant signed by a Mayor Pro Tern during the illness or absence
of the Mayor would be competent and admissible.
11 July 1962
Criminal Law; Public Drunkenness; Hotel Lobby
A hotel lobby is a public place within the meaning of the statutes pro-hibiting
drunkenness in a public place.
2 July 1962
Criminal Law; Pyrotechnics; Explosives; "Amateur Rocketry"
North Carolina does not have any statutes which are designed to encour-age
"amateur rocketry".
9 December 1963
Criminal Law; Pyrotechnics; Sparklers
"Sparklers" are considered pyrotechnics within the meaning of the law
in this State prohibiting the sale, exhibition or possession of fireworks.
28 August 1962
Criminal Law; Selling Cigarettes to Certain Minors
It is unlawful in this State to sell or give cigarettes or tobacco in any
form to a minor under the age of seventeen.
20 August 1962
Criminal Law; Worthless Check; Stopping Payment
The mere stopping payment on a check that has been issued, when there
are at all times adequate funds in the bank to cover it, does not constitute
a violation of the worthless check law.
26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
CRIMINAL PROCEDURES
22 August 1963
Criminal Procedure; Appeals by State; Not Allowed on Directed
Verdict
A directed verdict of "not guilty" in a criminal case is not such a
"special verdict" as would authorize the State to appeal under G. S. 15-179.
25 January 1963
Criminal Procedure; Appeal From Recorder's Court to
Superior Court—Waiver
A defendant may perfect his appeal within the ten-day period pre-scribed
by law even though he may have signed a waiver of such right.
30 September 1963
Criminal Procedure; Appointment of Counsel for Indigent Defen-dants;
Compensation of Counsel; Payment Out of State Appropria-tion
FOR Counsel Appointed under the State Post-Conviction
Hearing Act
Counsel appointed for indigent petitioners under the State Post-Convic-tion
Hearing Act are entitled to be paid in the same manner and out of
the same appropriation of State funds as counsel who are appointed for
indigent defendants in State trials under Chapter 1080 of the Session
Laws of 1963.
2 January, 1963
Criminal Procedure; Nolle Prosequi; Effect on Further
Prosecution for Same Offense
Where a nol pros with leave has been entered by the court in a criminal
proceeding, the State may later reopen the case by the issuance of a capias
upon the original warrant or indictment.
9 April 1964
Criminal Procedure; Warrants; Desk Officers; Issuance of Search
Warrant
An officer designated by the chief of police as a "desk officer" pursuant to
G. S. 160-20.1, enacted by the 1963 General Assembly, would have authority
to issue search warrants as well as warrants of arrest.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27
8 November 1963
Criminal Procedure; Witnesses; Fees; Salaried Officers
A salaried law enforcement officer is not entitled to witness fees for
attendance at court in connection with cases in which he has officially par-ticipated
even though the trial occurs at a time or on a day when he is off
duty.
DETECTIVES
17 January 1963
Detectives; Private Detectives; Carrying Concealed Weapons
A private detective may not carry a pistol concealed about his person.
Before an individual may purchase a pistol in this State, he must first
secure a permit from the sheriff of the county where the purchase is to
be made.
30 May 1963
Detectives; Private Detectives; Collection Agencies; Prohibition
Against Engaging in Both Occupations
It is unlawful for a person to be a bill collector and a private detective
at the same time in this State.
DIVORCES
21 August 1963
Divorces; Judgments; Effective Date of Judgment
A judgment for divorce becomes effective as between the parties to the
marriage only on the day the judgment of divorce is signed by the judge.
16 December 1963
Divorces; Remarriage; No Waiting Period
With respect to your inquiry of December 11, 1963, when an absolute
divorce is granted in North Carolina, each party is free to remarry im-mediately
without any waiting period.
14 September 1962
Divorces; Validity of Foreign Divorce
If a divorce is legally obtained in a foreign state under the laws of such
foreign state, it would be recognized in North Carolina.
28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
DOUBLE OFFICE HOLDING
29 April 1964
Double Office Holding; Candidate for Public Office and Membership
ON A Local School Board
A member of a local school board is not required to resign from said
board when he becomes a candidate in the primary for membership on the
board of county commissioners.
However, both of the positions mentioned above are considered public
offices within the meaning of Article XIV, Section 7, of the Constitution,
which prohibits double office holding, and one person may not hold both
these offices at the same time.
14 November 1963
Double Office Holding; Chairman of County Board of Elections and
Member of Medical Care Commission
A chairman of a county board of elections and a member of the Medical
Care Commission are both public offices within the meaning of Article
XIV, Section 7, of the Constitution, which prohibits double office holding.
2 December 1963
Double Office Holding; County Commissioners; Commissioner
Serving as Jailer; Commissioners of Public Trusts
It would constitute a violation of G.S. 14-234 for a member of a board
of county commissioners to accept an appointment by the board to the
position of county jailer.
22 August 1962
Double Office Holding; County Manager-Auditor; Town Mayor
Where the powers and duties of the County Accountant have been im-posed
and conferred upon the County Auditor, under G. S. 153-115, and
such person also performs the duties of County Manager under G. S.
153-20, such person would be constituted a public officer within the meaning
of Article XIV, Section 7 of the Constitution of North Carolina.
21 June 1963
Double Office Holding; County Sanitarian and Member of Town
Zoning Board of Adjustments
A Sanitarian II, employed by a County Health Department, is a position
of employment and not a public office within the meaning of Article XIV,
Section 7 of the North Carolina Constitution,
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29
2 January 1964
Double Office Holding; Deputy Register of Deeds;
Local Registrar for Bureau of Vital Statistics
Local Registrars of Vital Statistics, appointed under G. S. 130-40, is a
public officer and may not hold another public office at the same time under
Article XIV, Section 7 of the North Carolina Constitution.
11 July 1962
Double Office Holding; Justices of Peace Acting as Policemen;
Authority to Issue Warrants
A justice of the peace may also be a member of a municipal police force,
since a justice of the peace comes within the express exception to the pro-scription
of double office holding of Article XIV, Section 7 of the North
Carolina Constitution. Such justice of the peace may, in his capacity of
justice of the peace, take the oath of another police officer to an affidavit
on which a criminal warrant is to be issued, and then, as justice of the
peace, issue a warrant thereon returnable before the judge of the municipal
court. STATE v McHONE, 243 NC 231.
2 July 1963
Double Office Holding; Justice of the Peace and Notary Public
A justice of the peace may also hold the office of notary public. See Sec-tion
7 of Chapter 313 of the Session Laws of 1961.
9 April 1963
Double Office Holding; Justice of Peace Holding Other Office;
Effect of Constitutional Amendment to Article XIV, Section 7,
AS of November 30, 1962
The exemption of a jubtice of the peace, from the prohibition as to
double office holding, has been removed from Article XIV, Section 7, North
Carolina Constitution, since certification of the Amendment on November
30, 1962.
30 July 1962
Double Office Holding; Member, Board of County Commissioners and
. . County Tax Supervisor
The same person may not occupy the offices of member of the Board of
County Commissioners and County Tax Supervisor, as this would constitute
double office holding contrary to Article XIV, Section 7, of the Constitution
of North Carolina.
30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
26 April 1963
Double Office Holding; Member, Board of Higher Education
Membership on the State Board of Higher Education is exempt from the
provisions of Article XIV, Section 7, of the Constitution, which prohibits
double office holding. The office of membership on the State Board of Higher
Education may be lav/fully held by a person holding any other public
office without violating the provisions of the Constitution referred to above.
A member of the Board is considered as falling within the exemption and
is considered a commissioner of a public charity.
29 April 1964
Double Office Holding; Member, County Board of Elections and
Local School Committee
Membership on a local school committee and membership on a county
board of elections are both considered public offices within the meaning of
Article XIV, Section 7, of the Constitution, which prohibits double office
holding, and one person may not hold both these offices at the same time.
15 August 1962
Double Office Holding; School District Committeeman
AND Postmaster
School district committeeman is a public office.
10 September 1963
Double Office Holding; State Employment; Janitor, Bus Driver;
Running for Public Office
There is no statute which would prohibit a school janitor or bus driver
from filing and running for public office in a county or township.
29 October 1962
Double Office Holding; Supervisor of Soil Conservation District and
Member of ASC
The position as supervisor of a Soil Conservation District and the posi-tion
as member of ASC are both public offices and one person may not hold
both offices at the same time, since this would constitute double office hold-ing,
which is prohibited by Article XIV, Section 7, of the North Carolina
Constitution.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31
24 January 1964
Double Office Holding; Trustees of University of North Carolina;
Commissioners of Public Charities
The office of trustee of the University of North Carolina is a public
office. However, the University of North Carolina is considered a charitable
institution; therefore, a trustee may lawfully hold another public office
without infriengement of Article XIV, Section 7 of the North Carolina
Constitution.
23 July 1962
Double Office Holding; Trustees of Watershed Improvement
Districts ; Registrars
North Carolina constitutional prohibitions against double office holding
apply to the office of registrar for election purposes and trustees of water-shed
improvement districts organized under Article 2, Chapter 139 of the
General Statutes.
EDUCATION
12 July 1963
Education; Colleges; A & T College; Special Policemen;
Bond Required
A person who is appointed a special policeman under Article 10 of Chap-ter
60 of the General Statutes is required to furnish a bond "payable to
the State of North Carolina, conditioned upon the faithful performance of
the duties of his office."
11 March 1964
Education; Colleges; Speaker Ban Law; Visiting Speakers at State-
Supported Colleges and Universities; Application of Act to Russian
Folk and Ballet Ensemble
Chapter 1207 of the Session Laws of 1963 prohibiting certain Communist
speakers and others from using the facilities of State-supported colleges
and universities has no application to a folk and ballet group who perform
on a college campus and whose activities are entirely in the artistic and
cultural field.
. .
' 11 November 1963
Education; Community Colleges; Board of Trustees as Body
Corporate and Governing Authority of Community Colleges
Under the provisions of Chapter 115A of the General Statutes the Board
of Trustees of a community college, technical institute or industrial edu-
32 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
cation center is a body corporate and is authorized by the statute to hold
title to property, both real and personal.
11 November 1963
Education; Community Colleges; Multiple-County Administrative
Areas; Financial Support of County in which College is Located and
County in which College is not Located; Approval of Contract by
Voters of County
If two or more counties form a multiple-county administrative area under
the Community College Act, then each county may agree in a contract as to
the percentages of costs that each county will pay for procurement of land
and erection of buildings; under such a contract a county in which the col-lege
is not located could agree to pay its pro rata portion of the operational
expense based on the proportion of students that such county furnishes to
the entire student body and such county may provide for bus transportation
to and from the college at its own expense; if a multiple-county administra-tive
area is formed and a contract is proposed between the various counties,
then the voters of each county concerned should approve the provisions of
the contract along with the question of furnishing a pro rata share of
financial support and this would constitute a continuing obligation year
after year unless the contract was legally terminated.
22 January 1964
Education; Community Colleges; Statutory Provisions Governing
Community Colleges Organized Prior to the Year 1963, or Prior to
THE Enactment of G. S. 115A.
Community colleges organized prior to the enactment of Chapter 115
A
of the General Statutes should transfer such colleges to boards of trustees
organized under said Chapter since Chapter 115A of the General Statutes
is now the controlling law in community colleges.
15 February 1964
Education; County and City Administrative Units; Acquisition of
Site for Educational Facility by One Unit within the Territorial
Boundaries of another Unit; Operation of Educated Facility by One
Unit within the Boundaries of another Unit; Authority of City
Administrative Unit to Transfer its Property; Title to Property of
Educational Facility
A county board of education may acquire a school site within the boun-daries
of a city administrative unit but the county unit may not operate a
school thereon without an agreement and approval of the city board of
education; a city board of education has no authority to transfer or make
a conveyance of its school property and buildings unless it meets the condi-tions
set forth in G. S. 115-126 as to the sale, exchange or lease of school
property.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33
15 May 1964
Education; Higher Education; Consolidated University of North
CAROLINA; North Carolina State of the University of North Carolina
AT Raleigh; School of Engineering; Educational Functions of the
University; Charlotte College; Authority to Confer Degrees in
Mechanical and Electrical Engineering
The Board of Trustees of the University of North Carolina allocates to
its various campuses the functions that shall be carried on by each college
and if new functions or educational programs are established at any of
the institutions, they should be authorized by the State Board of Higher
Education; there is nothing in the present statutes that prevents or pro-hibits
any of the campuses or colleges, when properly authorized, from giv-ing
courses in engineering; at the present time Charlotte College is subject
to Article 2 of Chapter 116 of the General Statutes and with the authoriza-tion
of the State Board of Higher Education it can grant engineering de-grees
in mechanical and electrical engineering.
25 February 1964
Education; Higher Education Facilities Act of 1963; Authority of
Governor to Appoint State Commission on Higher Education Facilities
By virtue of his constitutional executive power and also by virtue of
G. S. 143-164 the Governor of North Carolina has the legal authority to
appoint a commission and advisory group for the purposes of carrying out
the provisions, on the part of the State, of Public Law 88-204, known as
the Higher Education Facilities Act of 1963.
16 March 1964
Education; Industrial Education Centers; Establishment of Unit or
Satellite of Industrial Education Center in a County Other than
THE Original Center; Authority of Local Board of Education to
Finance Satellite Unit under Contract
An industrial education center located in one county has no legal
authority to establish and financially support an additional campus or
satellite unit in another county. .13April 1964
Education; Industrial Education Centers; Instruction and Classes in
Industrial Education in a County other than Original Center;
Authority of Local Board of Education to Finance Local Instruction
Industrial education centers can contract with local school boards for
area instruction and boards of county commissioners can budget funds to
the local school boards for this purpose.
34 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
11 April 1964
Education; Industrial Education Center; When Necessary to Hire
Architect; When Necessary to Submit Contract to Bidders
Architects are not required on public works projects unless the expendi-tures
are in excess of $20,000; repairs or additions can be made a unit of
government through its own employees if the project involved does not ex-ceed
$15,000; otherwise if the project is equal to or more than $3,500 then
the contract must be let to the lowest bidder after advertisement.
23 August 1962
Education; Public Schools, Act Providing Scholarship Loan Fund
for Prospective Teachers
The Scholarship Loan Fund for prospective teachers permits credit on
a scholarship loan for each full school year taught in a North Carolina
public school; the schools operated at Fort Bragg and at Camp Lejeune
for the dependents of military personnel are not North Carolina Public
Schools and credit cannot be given on a scholarship loan fund for any
year taught in such schools; Caswell School at Kinston is a North Carolina
public school and credit can be given on a scholarship loan for each year
taught in such school.
31 July 1963
Education; Public Schools; Age of New Employee; Teachers and
State Employees' Retirement System
There is no State law placing any limitation on the age at which a person
may be employed as a school teacher. Frequently local boards have, as a
matter of policy, adopted certain age limits but this is a matter of local
policy and not of State law.
30 April 1964
Education; Public Schools; Attendance Counselors; Pre-Trial Inves-tigations;
Referral to Department of Public Welfare; Compulsory
Attendance
An attendance counselor of the public school system is not required to act
as probation officer in the case of a child brought before a juvenile court;
such counselor is not required to fill out any forms used by the Department
of Public Welfare and has no connection with the Department of Public
Welfare.
13 February 1964
Education; Public Schools; Authority of Board of County
Commissioners Over Employees
Boards of county commissioners have no legal authority to control the
conditions of employment, office hours, sick leave, vacation, and holidays
of employees of county and city boards of education.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35
7 August 1962
Education; Public Schools; Authority of Board of Education to
Assign Children to Public Schools; Status of School Attendance
Pending Appeal of Parents to Superior Court
The board of education of a county is vested with complete authority to
assign pupils to the various schools under its jurisdiction; where parents
of children ask for reassignment of pupils and this is refused by the board
pending appeal to the Superior Court, the children should attend the schools
as ordered by the board.
30 April 1964
Education; Public Schools; Authority of Board of Education to
Contribute Funds for Construction of Sewerage Disposal Plant by
Municipal Corporation which will be Used by the School
A county board of education can contribute funds to a municipal cor-poration
for the construction of a sewerage disposal plant which will be
used both by the municipal corporation and by the school authorities.
29 May 1964
Education; Public Schools; Authority of Board of Education to
Provide for Sewage System
It is the duty of the board of education to provide sewage facilities for
public schools; where a town permits a county school system to use its
sewage facilities without any contract or agreement the town may termi-nate
the use of the facilities when it desires to do so.
11 April 1964
Education; Public Schools; Authority of Member of Board of
Education to Teach as a Substitute Teacher
If a person teaches in the public schools, such person is ineligible to be
a member of a city or county board of education. A member of a board
of education, therefore, should not teach in the public schools, even as a
substitute teacher, as this would render such person ineligible to serve on
the board.
14 February 1964
Education; Public Schools; Bond Issue; Reallocation of Funds With-in
THE General Purpose for Which Bonds are Authorized; Diversion
of the Proceeds of a Bond Issue for Capital Outlay Purposes
The Board of Education and the Board of County Commissioners may
reallocate bond proceeds where the reallocation is a mere change in the
method or manner in carrying out the basic purpose for which the bonds
36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
were approved; such funds, however, cannot be used for a new project
which is entirely different from the basic purpose as this would constitute
a diversion of funds.
12 October 1962
Education; Public Schools; Cafeterias Furnishing Food to Civic
Clubs and Public Meetings
Public school cafeterias under G. S. 115-51 can only be used or operated
for the convenience of teachers, school officers, and pupils of the school;
cafeteria facilities can be i;sed for supper and evening meetings or student
activities, teachers' meetings, meetings of the board of education and similar
school-related meetings under regulations issued by the boards of education.
29 May 1964
Education; Public Schools; City Administrative Units; Number of
Members of Board of Trustees
Boards of trustees of city administrative units were left, by the General
Statutes when the school laws were revised, as provided by the various local
acts governing such boards of trustees; where the statute fixes the number
of members of the board, no new or additional members can be appointed
or added to the board unless the statute is amended for such purposes.
14 March 1964
Education; Public Schools; Compulsory Attendance Law; Penalty
for Violation; Successive Violations of Compulsory Attendance Law
The Compulsory Attendance School Law creates a continuing offense and
a parent can be indicted and convicted for successive periods of time and
for successive offenses in failing to send a child to school.
13 December, 1962
Education; Public Schools; Consolidation of City and County
Administrative Units; County Assuming City's Bonded Indebtedness
Theretofore Incurred for School Purposes
In order to consolidate county and city administrative school units into
one administrative unit it is not necessary that the county assume the
bonded indebtedness of the city, the proceeds of which have heretofore been
spent for school purposes. If the county wishes to assume such bonded
indebtedness of the city the question of such assumption should be sub-mitted
to the voters in an election.
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 37
9 March 1964
Education; Public Schools; Consolidation of Districts; Creation op
New School Committee
When two school districts are consolidated into one district the two old
school committees cease to exist and the county board of education may
appoint a new committee for the one consolidated district.
17 August 1962
Education; Public Schools; Consolidation op Districts Having Special
Bonded Indebtedness With Districts Having no Bonded Indebtedness;
Consolidation for Administrative Purposes; Approval of State Board
of Education
A school district which has voted a bonded indebtedness under a so-called
County Act can be consolidated with a nontax district which levies no
special tax for purposes of administration and attendance of pupils; the
special tax district for bond purposes retains its boundaires unaltered for
tax levying and debt service purposes.
17 February 1964
Eduction; Public Schools; Constitutional Law; Religion and Public
Education; Prayer in Public Schools; Prayer on a Voluntary Basis
The reading of the Bible and recitation of prayers in the public schools
can be properly engaged in on a voluntary basis. It would be constitu-tionally
invalid if such reading of the Bible and saying of prayers were
by order of a school board or other State agency.
4 March 1964
Education; Public Schools; County Board op Education; Appointment
of Member of County Board of Education to Inspect Boilers of the
School System; Reimbursement for Services
A county board of education is not authorized to appoint one of its mem-bers
as a boiler inspector for the county schools and to pay him a per diem
and travel expense; boiler inspection is under the supervision of the Depart-ment
of Labor and such inspections must be made by licensed inspectors of
that Department.
14 May 1964
Education; Public Schools; County Board of Education; Authority
TO Provide Recreation Program During the Summer Months in Each
School District of the County
A county board of education has no authority to spend school funds to
establish a recreational system in the various school districts of the county
during the summer months and when the schpols are not in session,
38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
6 September 1962
Education; Public Schools; Dismissal of Teacher for
Violation of Traffic Laws
A school teacher should not be dismissed for violations of traffic laws
where no intoxication is involved upon the grounds that such violations are
immoral or disreputable.
11 April 1964
Education; Public Schools; Duty of County Commissioners to Supply
Office for County Schools; Quarters for County Board of Education
A county board of education has the authority to supply adequate fa-cilities
for the school system and this includes an office or office space in
which the board of education can hold its meetings.
14 December 1962
Education; Public Schools; Election to Enlarge City Administrative
Unit and Levy Supplemental Tax; Expense of Election; Right to
Determine District Lines; Transfer of Property and Operation of
Schools in Territory Added to City Administrative Unit
When a school election is held to determine whether or not a district of
a county administrative unit shall be added to a city administrative unit
with an equalizing tax, all expenses of such election are the obligation of
the city administrative unit; if such territory is added to the city adminis-trative
unit, then the school buildings and facilities and the operation of
same go to the city administrative unit but there may be an agreement
as to the transfer of property. All exchanges of students between the two
units and matters of tuition and attendance can be agreed upon in writing
between the two boards and made a matter of record by resolution of each
board.
26 February 1964
Education; Public Schools; Eligibility for Membership on Board of
Education; Person Conducting Private Music School in Connection
WITH Public School; Eligibility of Member of Local School Committee
A person conducting a private music school in connection with a public
school is not eligible to serve on a county board of education nor is a mem-ber
of a local district committee eligible to serve on a county board of edu-cation.
11 April 1964
Education; Public Schools; Eligibility of Member of County Board of
Education; Eligibility of Person Who is Superintendent of Workshop
Training Center
A person who is superintendent of a workshop school engaged in voca-tional
instruction for mentally handicapped adults aboyg 16-years of age,
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 39
which is operated under the rules and regulations of the State Board of
Education, and which school has one teacher paid by the State, is not
eligible for membership on the county board of education.
9 March 1964
Education; Public Schools; Expenditure of School Funds for Water
AND Sewer System for School Building; Duty of School Authorities
A county board of education is authorized to expend capital outlay funds
in order to provide water, sewerage and other sanitary facilities for public
school buildings.
6 September 1962
Education; Public Schools; Insurance; Liability of Board of Educa-tion
FOR Injury to Student Sustaining Broken Ankle in Football
Game
A school board is not liable for injury received by a student who sustains
a broken ankle in a football game; there is no statute or law under which
a school board can voluntarily assume liability and pay hospital bills for
such an injury.
28 April 1964
Education; Public Schools; Issuance of Bonds by City Administrative
Unit for Capital Outlay Purposes; County-Wide Issue for Capital
Outlay; Buncombe County Act and Cleveland County Act
There can be a county-wide bond election for capital outlay purposes for
all the schools in the county, including a city administrative unit; unless
the Buncombe County Act or the Cleveland County Act is applicable to a
county, then there is no machinery for a city administrative unit to issue
its own capital outlay bonds.
10 April 1964
Education; Public Schools; Lease of School Property; Lease to
Non-School Personnel of Vacant Apartment in Teacherage
A county board of education may lease unused apartments in a teacherage
to non-school personnel for a reasonable rental and for a term not in excess
of one year. Such lease should contain a clause that the lease shall termi-nate
if it again should be needed for public school purposes.
10 April 1964
Education; Public Schools; Length of School DAy; Authority op
Board of Education to Dismiss Pupils for a Limited Time for Purpose
OF Attending Agricultural Fair
The board of education of a county has the authority to permit teachers
and students to be dismissed from school for a lijiiited time in order to at-tend
a county agricultural fair.
40 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
3 December 1962
Education; Public Schools; Liability of City Board of Education
FOR Street Assessments
City school boards are liable for special assessments made by municipal
corporations on account of street improvements. These assessments are
not taxes, and the Supreme Court of this State has held that city boards of
education must pay such assessments.
10 April 1964
Education; Public Schools; Local Budgets; Transfer of Funds
Within the School Budget from One Code to Another
Within the current expense fund and within the capital outlay fund a
board of education may transfer funds from one code number to the other
if the board of county commissioners approves the transfer resolution.
12 May 1964
Education; Public Schools; Minimum Wage Law; Application op
Minimum Wage Law to School Employees
The Minimum Wage Act does not apply to county and city school boards
and other agencies of government.
4 June 1964
Education; Public Schools; Payment of Tuition for Pupils Who
Reside Out of District With Supplementary School Tax but Who
Attend School in Such District; Validity of Tuition Fee
The payment of tuition for pupils who live outside a special tax district
but who attend schools located within a special tax district is legal and valid.
13 May 1964
Education; Public Schools; Principal; Assistant Principal;
Authority For
A principal of a school cannot delegate his duties to any other person.
The school statutes do not provide for any such position as assistant prin-cipal.
6 November 1963
Education; Public Schools; Providing Basal and Supplemental
Textbooks; County and City Units Withdrawing from State Systems
A county or city administrative unit under the provisions of G. S. 115-220
cannot withdraw its elementary schools from the State rental program for
supplementary books in the elei»ent3,ry schools without the approval of
the State Board of Education,
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 41
2 July 1962
Education; Public Schools; Purchase and Contract; Purchase of
Mobile or Demountable Public School Classrooms
The demountable classroom facilities which do not remain on wheels and
are erected or set upon foundations may be purchased by school units
according to Chapter 143 of the General Statutes, known as the Public
Contracts Act, but the structural and functional soundness, safety and
sanitation of such units must be in accordance with plans approved by the
State Superintendent of Public Instruction; mobile units used for the
same purpose, which remain on wheels, fall under G. S. 115-52, relating
to the purchase of equipment, and must be purchased by school units on
State contracts established by the Division of Purchase and Contract.
13 May 1964
Education; Public Schools; Regulations of Board of Education;
Lowering Grade; Retroactive Application of Regulations
A city or county school board has no authority to pass a regulation low-ering
a pupil's grade as a form of disciplinary action; a city or county
school board has no authority to pass regulations and make the same
applicable in a retrospective manner.
14 May 1964
Education; Public Schools; Right of Children Discharged from State
Correctional Schools to Attend the Public Schools
Children discharged from correctional institutions of the State still have
a right to attend the public schools.
19 December 1962
Education; Public Schools; Sale of Surplus School Property
A County Board of Education may not transfer surplus real property
without specific legislative authority or complying with G. S. 115-126.
4 June 1964
Education; Public Schools; School Committee; Election of Chairman;
Resignation of Chairman and to Whom Made; Existence of
Disagreement as to Election of Principal
The resignation of a chairman of a school committee should be directed
to the county board of education. When the superintendent and the school
committee will not agree on the choice of a principal there exists a dis-agreement
and the board of education should appoint and employ a prin-cipal;
the county board of education determines whether or not a dis-agreement
exists.
42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
5 June 1964
Education; Public Schools; Special Funds; Ownership of Fund
Provided for Special Purpose in High School After High School is
Consolidated with other High Schools
Funds deposited by a class of Future Farmers of America in the high
school for the promotion of forestry study should be handled as special
funds under G. S. 115-91 (c); if the high school is consolidated with other
high schools into a central high school, then the funds follow the school's
succession and should be used for the forestry project in the consolidated
high school.
30 August 1962
Education; Public Schools; Supplemental Tax. Information to be
Furnished to Governing Authority of City in Preparing Supplemental
Tax Budget
In making budget requests for supplemental funds city administrative
units should present all financial data to the city governing authority,
including items contained in the budget presented to the county.
1 June 1964
Education; Public Schools; Teachers Demonstration Schools;
Authority of County Board of Education to Cooperate With Teachers
College in Operating Demonstration School
County boards of education have the authority to enter into agreements
with teachers' colleges for the operation of demonstration schools; the final
authority, however, for the employment of principals and teachers is vested
in the county board of education and cannot be delegated or shared jointly
with the president of a teachers' college.
30 January 1964
Education; Public Schools; Transportation of Pupils to Summer
Schools Operated by the Public School System; Use of Public School
Buses for such Purpose
Public school buses can be used for the transportation of pupils to sum-mer
schools of the public school system; boards of education, however,
should procure liability insurance to protect the boards and pupils from
negligent injuries and this should be required by regulations of the State
Board of Education.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 43
5 June 1964
EDUCATION; Public Schools; Use of Laboratory Facilities of a
Public School by a Non-Public School
A county or city board of education has no legal authority to make its
laboratory facilities available to a non-public or private school since school
property must be devoted to public school use exclusively.
30 January 1964
Education; Public Schools; Use of School Buses for Transportation
OF Pupils to Career Day Programs
Public school buses and their transportation uses are controlled by G. S.
115-183; such public school buses cannot lawfully be used for career day
programs which have no rational or legal connection with the public school
system and pupils cannot be transported by public school buses for such
purpose.
24 October 1963
Education; Public Schools; Use of Supplementary Tax Funds to
Employ Extra Teacher, Supplement Salaries of Principals and Pay
Salary of Coach or Physical Education Teacher
Under the provisions of G. S. 115-116 supplementary tax funds can be
used to employ an extra teacher as a librarian, relieve a principal of part-time
classroom teaching duties, supplement salaries of classified principals,
and pay a coach or physical education teacher during summer months in
physical education program.
23 August 1962
Education; Sales of Articles in Dormitory of Institution of
Higher Learning
There is no statute prohibiting the sale of various articles in the dormi-tories
of colleges and universities; with certain exceptions State depart-ments
and institutions and their employees cannot engage in the sale of
articles of commerce in competition with private individuals or private
business; the board of trustees of the various colleges and universities have
the authority to pass ordinances or regulations, either prohibiting or regu-lating
the sale of articles by students in the various dormitories.
1 June 1964
Education; State Board of Higher Education; Gifts to State Board of
Higher Education to Finance Surveys; Authority to Keep Gifts in
Special Account other than Financial System of the State
A State agency can receive a gift of funds for specific research or for a
specific purpose and if the donor wishes, it may be kept in a separate
44 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
account and used by said agency for said purpose; any auditing of the
fund would not relate to the purpose of the expenditure.
ELECTIONS
21 November 1963
Elections; Absentee Ballots; Construction of Chapter 457,
Session Laws of 1963
All applications for absentee ballots shall be approved or disapproved
by the County Board of Elections at its meetings held for that purpose,
and no absentee ballot shall be delivered in person or by mail to the voter
until the application has been approved by a majority of the county board
of elections.
1 November 1963
Elections; Compensation of Precinct Officials
In primary and general elections, the county boards of elections have
authority to appoint the judges, registrars, assistants, clerks and other
precinct personnel, as authorized in Chapter 163 of the General Statutes,
and such officers and personnel shall be compensated by the board of com-missioners
of the respective counties as provided by statute.
2 November 1962
Elections; Corrupt Practice Act; Filing Statement of
Expenditures and Contributions in General Election
G. S. 163-195 requires any and all campaign committees to file with the
Secretary of State a statement of all contributions and expenditures made
in behalf of a candidate in any primary, general or special election; but
if a candidate, in the general election, receives all contributions and makes
all expenditures in his behalf, then such candidate does not have to file
the statement of contributions and expenditures with the Secretary of State.
19 June 1964
Elections; Eligibility of Voter; Literacy Test; Persons Whose Names
Appear on the Registration Books but Who are Unable
to Pass Literacy Test
Where it is suggested to a county board of elections that some of the
persons registered cannot meet the literacy test a county board of elections
operating under a loose-leaf and visible registration system can hear chal-lenges
made to the registration of such persons and make its findings as
to the eligibility of guch persons.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45
29 January 1964
Elections; Filing Fee Required of Candidates in Primary;
Clerk of Superior Court
Compensation received by clerks of superior courts in their capacity as
ex officio clerks of recorder's courts and judge of juvenile courts should
not be included in the annual salary in computing the filing fee required
of candidates for the office of clerk of superior court under G. S. 163-120.
31 July 1962
Elections; General; Substitution of Candidates After Primary;
Nomination of Senatorial Candidates by District Executive Committee
Under G. S. 163-113, when there is no rotation agreement among the
counties comprising a senatorial district, selection of substitute nominee
for State Senator is made by the Senatorial Executive Committee of the
party in which the vacancy occurs. The terms of the proviso in G. S. 163-145,
under which county boards of election may order substitution of candidates
after the primary or convention "for good cause shown," is construed to
mean that the county board has discretionary authority to determine
whether reasons for necessity of substitution are bona fide, arose in good
faith, and are so compelling that the candidate for whom substitution is
sought would be prevented from representing his party effectively, or from
serving in the office to which he might be elected.
22 January 1963
Elections; Inspection of Registration and Poll Books
County registration books and poll books are deemed to be public records
and subject to inspection by electors as provided by statute.
20 June 1963
Elections; Municipal ABC Election by Special Act;
Beer and Wine Election
A county or municipal election on the question of legal sale of beer or
wine or both may not be held on the same date of a special liquor election
in a municipality, or within 60 days of any general, special or primary
election in the county or any municipality therein, until after July 1, 1963.
G. S. 18-124 (f) specifies what conditions must be met in order for a beer
and/or wine election to be held on the same date as an election for ABC
stores.
2 April 1964
Elections; Primaries; Selection of Nominee; Write-in Vote Not
Authorized in Primary
The exclusive method for the nomination of a nominee of a political
party is provided by Article 19, Chapter 163 of the General Statutes (Pri-
46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
mary Laws), and a person may not become a nominee in the party primary
by "write-in votes.
24 October 1962
Elections; Primaries; Write-in Votes Not Authorized
While write-in votes are permitted in general elections, write-in votes
are not authorized by law in primary elections.
14 May 1964
Elections; Registration; Ability to Read and Write
Printing or block type copying of sections of the Constitution is sufficient
to qualify an applicant under the written test for registration.
29 April 1964
Election Laws; Registration; Books Must be Held Open at Polling
Places
Registration books must be held open at polling places. They may not
be kept open at any other place.
19 October 1962
Elections; Registration; Invalidity of "Grandfather Clause"
The so-called Grandfather Clause contained in the North Carolina Con-stitution
is invalid.
27 May 1964
Elections; Registration; Member of One Political Party Challenging
Member of Another Political Party
The right to challenge, as provided in Article 12, Chapter 163 of the
General Statutes, pertains to the constitutional qualifications of the chal-lenged
voter and, therefore, any elector may challenge the name of any
person registered even though the challenger and the challenged voter are
members of different political parties.
15 October 1962
Elections; Residence — Voter Moving to Another County One Week
Prior to General Election
A person may move his residence from one county to another and not be
deprived of his right to vote in the precinct, ward or other election district
from which he moved until thirty days after such removal. Art. VI, Sec. 2,
N. C. Constitution; G. S. 163-25.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 47
2 November 1962
Elections; Write-in Votes for Township Office; Number Required
A write-in candidate in the general election for county or township office
or for the House of Representatives or for the State Senate, must receive
as many as 5% of the votes cast for candidates for Congress in the town-ship
or county in which said write-in candidate is running as a prerequisite
for his being elected.
EMINENT DOMAIN
17 September 1962
Eminent Domain; Condemnation; Boards of County Commissioners;
Authority to Condemn Property for County Buildings
Boards of county commissioners are possessed only with those powers
which have been expressly conferred or which are necessarily implied for
the proper exercise of the duties imposed upon them and may not exercise
the power of condemnation unless expressly conferred by the Legislature,
or the power of condemnation is necessarily inferred from the particular
act involved.
17 May 1963
Eminent Domain; Hospitals; Power of Condemnation
A hospital, owned by a County, has the power of condemnation as pro-vided
in G. S. 131-28.14 to condemn private property for a hospital purpose.
25 April 1963
Eminent Domain; Local Modification of a General Law; Delegation
of Power of Eminent Domain; School Law — Property
A local or special act may take precedence over the general law with
respect to the exercise of the power of eminent domain.
The power of eminent domain can be delegated to a county or city school
board by a local or special act.
3 December 1963
Eminent Domain; Municipalities; Sewerage and Waterworks;
Condemnation of School Property by a Municipality for
Sewage System Purposes
In the exercise of a general power of eminent domain, a municipality
may condemn lands belonging to a county school board where the lands
are not in actual public use or not needed for school purposes, provided
that the public use to be established thereon will not destroy the existing
48 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
use of the remainder of the tract or interfere with the existing use to such
an extent as is tantamount to a further taking or destruction.
4 May 1964
Eminent Domain; Precedence of Trial
The provisions of G. S. 40-33 providing for precedence of condemnation
trial apply only to proceedings instituted under the provisions of Article 3
of Chapter 40 of the General Statutes.
19 May 1964
Eminent Domain; Right of Municipality to Condemn Property for
State Highway System Street
A municipality is authorized to condemn right of way for State Highway
System strees and may bring the action in the name of the municipality.
7 May 1964
Eminent Domain; State Highway Commission; Highway Right of Way
The State Highway Commission has no authority to create a property
interest in a private party which would be superior to the easement of the
State for highway purposes in lands acquired for right of way. An ease-ment
is a property interest, the taking of which requires the payment of
just compensation.
EMPLOYMENT SECURITY ACT
20 January 1964
Employment Security Act; Employers; Notice to Employers; Validity
OF Notices to Attorneys in Fact Purporting to Represent Employers
The various statutes in the Employment Security Act requiring that
notices, forms and other documents be sent to employers mean that such
notices, forms and documents shall be sent to the employers themselves and
not to consultants, accountants and others who hold power of attorney to
act as attorney in fact.
EMPLOYMENT SECURITY COMMISSION
2 April 1964
Employment Security Commission; Clerks of Court; Fees; Docketing
E.S.C. Certificates; Statutory Construction
Chapter 288 of the Session Laws of 1945 prescribing a fee of $1.00 for
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49
the clerk of the superior court for indexing and docketing Employment Se-curity
Commission certificates, is applicable in every county in the State
unless said statute has specifically, by reference thereto, been amended or
modified.
ESTATES
31 December 1963
Estates; Administration of Estates; Survivor's Allowance
Bank accounts and savings accounts would be proper assets of the dece-dent's
estate from which to award the survivor's year's allowance pursuant
to Article 4 of Chapter 30 of the General Statutes of North Carolina.
EXECUTION
21 February 1963
Execution; Vested Remainder in Real Property; Homestead Exemption
The vested remainder interest of a nonresident in real property in this
State may be levied upon and sold at execution, and such nonresident is
not entitled to a homestead exemption.
EXECUTORS AND ADMINISTRATORS
11 July 1963
Executors and Administrators; Assets; Growing Crops
Crops planted and ungathered at the decedent's death are considered
personal assets of the estate of the decedent.
11 July 1963
Executors and Administrators; Claim by an Educational Institution;
Priority
A claim by an educational institution against the estate of a decedent
would be considered a debt of the fourth class and entitled to priority in
payment over the general creditors of the estate.
50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
6 July 1962
Executors and Administrators; Estates of Less Than $1,000.00;
Receipt for Contents of Safe Deposit Box
Where the Clerk of Superior Court administrates the assets of estates
of less than $1,000.00, he would be the proper person to give a receipt for
the contents of a safe deposit box.
7 January 1963
Executors and Administrators; Final Accounts;
Compelling Accounting
The clerk of the superior court can require an accounting of the pro-ceeds
of a wrongful death action prior to the expiration of two years after
qualification of an administrator where the estate has otherwise been fully
administered.
29 June 1964
Executors and Administrators; Intestate Succession Act;
Determination of Shares of Brothers and Sisters and Their
Lineal Descendants
Surviving nephews and nieces by deceased brothers or sisters of the
intestate share equally in that portion of the intestate's property not
passing to surviving brothers and sisters of the intestate.
8 May 1963
Executors and Administrators; Intestate Succession Act;
Distribution to Children and Grandchildren
The Intestate Succession Act, which became effective July 1, 1960, pro-vides
that the distribution of property in all classes shall be on a per capita
basis.
17 December 1962
Executors and Administrators; Legal Fees; Estate Tax Controversy
Involving Nonprobative Assets of Decedent
Where an executor employs counsel to assist him in the administration
of the estate, the contract is personal and not a debt against the decedent's
estate. The executor must pay it, and if the disbursement were reasonably
necessary to conserve the estate, it will be allowed him in settlement of his
account as a necessary expense of administering the estate.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51
31 December 1963
Executors and Administrators; Nonresident;
Ancillary Administration
Where a nonresident dies leaving personal property in this State, an
ancillary administration is required in the county where the property is
located.
7 August 1962
Executors and Administrators; Sale of Real Property to Make
Assets for Payment of Debts; Necessary Parties
There is no requirement that the spouses of heirs or devisees be joined
as parties defendant in a special proceeding for the sale of real property
owned by the testator to make assets for the payment of his debts.
i
- 24 January 1964
Executors and Administrators; Sale of Eeal Property to Make
Assets; Rights of Judgment Creditors of Devisees
Where real property of a decedent is sold by his personal representative
to make assets to pay debts of the estate, judgment creditors of the heirs
or devisees of such real property may assert their interest in any surplus
proceeds prior to distribution of such proceeds by the personal representa-tive.
Linker v. Linker, 213 N. C. 351.
FAIRS
7 September 1962
Fairs; Agricultural; Circuses; Conflicts in Dates
A circus does not come within the purview of G. S. 106-516.1, which
prohibits the exhibition of carnival or shows "of like kind" within 30 days
prior to a regularly advertised agricultural fair. Circus performances as
they relate to conflicts in dates with agricultural fairs are governed by
G. S. 106-519 and G. S. 105-38.
FIRE PROTECTION
19 March 1964
Fire Protection; Departments; Rural Fire Districts;
Removing Portion of District
There is no statutory procedure for cutting off and removing a portion
of a rural fire protection district.
52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
19 July 1962
Fire Protection; Districts; Election; Petition
A petition signed by the requisite number of property owners, addressed
to the county commissioners, asking for the creation of a fire protection
district and for the levy of a tax in support thereof "of not exceeding five
cents (54) on the one hundred dollar ($100.00) valuation" is valid, although
the statute sets a maximum rate of taxation at 15(!S on the $100,00 valuation.
9 November 1962
Fire Protection; Firemen; Firemen's Pension Fund; Retiring After
30 Years of Service but Before Reaching the Age op 55 Years
Under the provisions of G. S. 118-25, a fireman v^^ho is 51 years of age,
has had more than 30 years of service in a department and who is other-wise
eligible, may retire before age 55 and continue his membership in the
North Carolina Firemen's Pension Fund by making his monthly payments
until he reaches the age of 55 or until he has made monthly payments into
the fund for 30 years, whichever is the earlier.
7 December 1962
Fire Protection; Oath of Office of Commissioners of
Rural Fire Protection Districts
The oaths of office of commissioners of rural fire protection districts
established pursuant to G. S. 69-25.1 et seq. are prescribed by G. S. 11-6,
11-7 and 11-11.
GUARDIANS
3 July 1962
GUARDIANS; Guardian and Ward; Foreign Guardian;
Sale of Realty and Removal of Proceeds
Real property located in North Carolina and belonging to a nonresident
ward may be sold or otherwise converted into personalty as an incident to
a proceeding in which a foreign guardian seeks removal of the ward's
personalty from North Carolina to the state of the ward's residence.
4 September 1962
Guardians; Guardian and Ward; Parent's Duty to Support Where
Child Has Independent Estate
Where a father is dead and the mother has adequate financial resources,
she is responsible for the support, maintenance and education of the child
even though the child might have a separate estate of its own.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 53
3 January 1964
Guardians; Investment op Funds; Diversified Common Stocks
A guardian may invest the funds of his ward in diversified common
stocks provided he uses good faith and due diligence in making such invest-ments.
HEALTH
3 May 1963
Health; Immunization Against Certain Diseases; Kindergartens
Sections 130-91 and 130-93.1 require immunization of children against
certain communicable diseases before being allowed to enter school, and
the word "school" as used in this context would include kindergartens.
5 December 1963
Health; Local Board of Health; Compulsory Vaccination or
Immunization
A local board of health has authority to adopt reasonable rules and regu-lations
requiring "booster immunizations" with respect to certain infections
or diseases such as tetanus, diphtheria and poliomyelitis.
1 October 1962
Health; State Board of Health; Nursing Homes; Licensing;
County-Owned Nursing Homes
County-owned nursing homes are subject to the provisions of Chapter
130 of the General Statutes relating to the licensing of nursing homes.
22 March 1963
Health; State Board of Health; Polio Immunization; Schools;
Immunization Before Admission to School
The law requires proof of polio immunization before a child can enter or
attend any public, private or parochial school in this State (except for the
sections relating to the child's health or religious objections).
13 March 1964
Health; State Board of Health; Restaurants; Regulations;
Free Toilet Facilities
The regulations of the State Board of Health requiring that free toilet
facilities be made available for employees and patrons of restaurants and
54 BIENNIAL REPORT OF THE ATTORNEY GENERAL, [VOL.
certain other foodhandling establishments are valid and authorized by Sec-tion
72-46 of the General Statutes.
31 March 1964
Health; State Board op Health; Tuberculosis;
Spreading of Communicable Tuberculosis
A person who has tuberculosis in an active, infectious stage is guilty of
a criminal law violation if he refuses to submit to appropriate treatment.
8 April 1963
Health; Tuberculosis Patients; Right to Home Treatment
With respect to tuberculous persons, when there is no danger to the
public or to other individuals as determined by the health director, the
tuberculous person may receive treatment at home.
HIGHWAYS
29 April 1963
Highways; Extension of Blue Ridge Parkway; Enabling Legislation
Should the Federal Government authorize a spur to be built extending
the Blue Ridge Parkway from a point in North Carolina near Beach Gap
to the Georgia State line, no new legislation is necessary in North Carolina
in order for the State of North Carolina to acquire the necessary right of
way for said extension due to the provisions of G. S. 136-19.
20 May 1964
Highways; Signing of Dual Lanes
The use of signs designated "Divided Highway" and "Keep Right" at the
beginning of a dual lane highway, where lanes are separated by a median,
and one-way traffic only is permitted on each of the separate lanes, is in
conformance with the Manual on Uniform Traffic Control Devices; and is
an appropriate sign within the meaning of G. S. 20-165.1 indicating the
direction of traffic on a one-way portion of the dual lane highway.
HOSPITALS
28 May 1964
Hospitals; Counties; Public Bidding; Purchase of Insurance
ON Hospitals
In obtaining insurance on county-owned buildings, it is not necessary to
follow the public bidding provisions of Article 8 of Chapter 143 of the
General Statutes.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55
17 May 1963
Hospitals; Eminent Domain and Condemnation
Wayne County Memorial Hospital, owned by the County, has the power
of condemnation as provided in G. S. 131-28.14 to condemn private property
for a hospital purpose.
10 April 1963
Hospitals; Mental Institutions; Disclosure of Contents of Records;
Names of Patients Listed in Psychiatric Register
Names of patients listed in the Hospitals Board of Control psychiatric
register are privileged to the extent provided in G. S. 122-8.1 and G. S. 8-53.
12 April 1963
Hospitals; Public; Hospital District; Issuance of Bonds
Article 13C of Chapter 131 of the General Statutes does not restrict a
hospital district to a single bond election. Bond elections may be had from
time to time if petitioned for.
27 September 1963
Hospitals; Staff Physicians in State Hospitals;
Liability for Results of Official Acts
A State hospital is classified as a charitable institution and would not
be liable for the negligence of its servants and employees provided they
had used due care in their selection and retention.
5 April 1963
Hospitals; State Hospitals; Educational Institutions; Infirmaries
The Hospital Licensing Act applies to all State hospitals but not to edu-cational
institutional infirmaries.
INSANE AND INCOMPETENTS
9 July 1962
Insane and Incompetents; Certifying Physicians in Connection with
Commitment of Alleged Mentally Disordered Persons to
State Hospitals
Being a staff member of a State institution does not disqualify a physi-cian,
who otherwise meets the requirements of G. S. 122-43, from making
certification of alleged mentally disordered persons for commitment to
56 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
State hospitals, provided the certifying physician is a member of the staff
of the institution to which commitment is contemplated.
22 October 1963
Insane and Incompetents; Commitment Procedure; Notice of Hearing
For persons judicially committed to mental institutions prior to July 1,
1963, the procedure as it existed prior to the 1963 Amendments, which be-came
effective July 1, 1963, is applicable.
24 September 1962
Insane and Incompetents; Inmates of State Hospitals; Procedure
When Surgical Operations on Inmates are Necessary
Under North Carolina G. S. 130-191, medical staff of any State hospitals
or other State institutions is authorized to operate on inmates where neces-sary
to improve inmate's physical or mental condition. Decision to be made
by chief medical officer of institution with approval of superintendent and
with advice of institution's medical staff. No operation to be made without
consent of inmate or, if inmate non compus mentis, by responsible member
of family or a guardian,
22 October 1963
Insane and Incompetents; Non-Resident Infant Having Real
Property in this State; Guardianship
The Clerk of Superior Court of a county in North Carolina in which
there is located real estate owned by a non-resident infant, is authorized,
upon proper showing that the infant has a guardian in his or her state
and does not have a guardian in North Carolina, to appoint an ancillary
guardian in the North Carolina clerk's county where the property is located.
N. C. G. S. 33-31.2.
20 March 1963
Insane and Incompetents; Persons Already in Hospital; Hearing
Before Clerk as to Indefinite Commitment; Venue and Jurisdictions
Where a person has been committed to mental institution for temporary
period of observation, the hearing at the end of that period on the question
of final commitment must be held by the clerk of and in county of person's
residence, if known; otherwise, hearing must be held by clerk of and in
county who ordered initial, temporary commitment.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 57
INSURANCE
3 June 1963
Insurance; Contract; Validity of Certified Copy of
General Power of Attorney
Opinion given that a certified copy of the general power of attorney-issued
in conjunction with a guaranty contract by an insurance company
is valid and binding upon the insurance company if the corporate seal is
attached thereto, citing G. S. 55-36 (c) and (d).
22 May 1964
Insurance; Debt Cancellation Contracts; National Banks
National banks engaging in the insurance business in this State are sub-ject
to the provisions of Chapter 58 of the General Statutes of North
Carolina and such banks must comply with the insurance laws of North
Carolina in negotiating debt cancellation contracts.
V . 6 March 1963
Insurance; Group Life; Putnam Plan, Sale of Securities With
Group Life Insurance
Sale of securities under a plan which includes group life insurance with
the seller of the securities as the insured and resulting in distribution of
life insurance proceeds to the seller at the death of the purchaser and
where the purchaser is not obligated to continue payments for any period
of time or for any definite amount, is one in which the seller has no insur-able
interest in the life of the purchaser of the securities.
'^-
1 November 1962
Insurance; Hospital, Medical and Dental Service Corporations;
Donations for Religiols, Charitable, Scientific or Educational
Purposes Not Allowed
Hospital, medical and dental service corporations organized and oper-ated
under Chapter 57 of the General Statutes are not permitted by law
to make donations for religious, charitable, scientific or educational pur-poses.
16 August 1962
Insurance; Offering Inducements, Other Than Provided in the
Policy, to American Legion Post Members Prohibited; Soliciting
Insurance by Unlicensed Agents; Violation op Insurance Laws
Plan of an insurance agent to use unlicensed members of an American
Legion Post to solicit insurance business from Post members and to donate
58 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
50% of the first quarterly premium to the American Legion Post would,
if consummated, violate the anti-rebate statute, G. S. 58-44.5, and G. S.
58-51.3 prohibiting use of unlicensed persons to solicit insurance business.
5 August 1963
Insurance; State Employees' Group Insurance; Accumulated Funds
The State Highway Commission, in deducting sums from employees'
salaries for payment of group insurance premiums, acts as a trustee for
the employee, and any sums deducted in excess of the amount required to
pay the premium should be returned to the employee from whom it was
received.
JURIES; JURORS
24 September 1963
Juries; Jurors; Challenges; Special Venire; Criminal Law
A special venireman drawn from the jury box is on the same standing
as a regular juror and is not subject to challenge for cause for having
served on the jury within two years prior to the term.
A special venireman who has not been drawn from the jury box is sub-ject
to the same challenges for cause as tales jurors. STATE v LEVY,
187 NC 58L
LABOR
3 December 1963
Labor; Department of Labor; Hours of Work for Women in Certain
Industries; Waitresses in Hotels; Motel Dining Rooms and
Coffee Shops
While employees of hotels and motels are exempt from G. S. 95-17, never-theless,
waitresses in hotels, motel dining rooms and coffee shops are
covered by G. S. 95-27 restricting their work hours to ten hours per day
and fifty-five hours per week.
18 February 1964
Labor; Department of Labor; North Carolina Voluntary
Apprenticeship Act; State Apprenticeship Council; Federal Regula-tions
AS to Nondiscrimination in Apprenticeship and Training
State Apprenticeship Councils, with the approval of the Commissioner
of Labor, can adopt federal standards as to nondiscrimination in appren-
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 59
ticeship agreements but are not compelled to do so; it is suggested that
after consultation with employers such standards might be adopted for
projects under federal contract or projects which are developed and con-structed
in whole or in part by federal funds.
LOTTERIES
4 March 1963
Lotteries; Pinball Machines
The possession, sale, use or operation of pinball machines is not per-mitted
in North Carolina. See G. S. 14-306.
28 April 1964
Lotteries; What Constitutes a Lottery
In order to constitute a lottery in this State, there must be three elements
present, to wit: (1) a prize; (2) a consideration; and (3) the winner of
the prize is to be determined by some formula of chance.
The rule is that, where the winner of a contest is partly determined by
chance and partly by the skill of the contestant, the scheme is a lottery,
provided the element of chance is predominant. On the other hand, if the
element of skill predominates over that of chance, the scheme or plan is
not a lottery.
MARRIAGE
13 July 1962
Marriage; Authority of a Justice of the Peace to Perform a Marriage
Ceremony Outside his County
A justice of the peace may not perform a marriage ceremony in a county
other than his own.
19 November 1963
Marriage; Authority to Perform Marriage Ceremony
Under the provisions of G. S. 51-1, a marriage ceremony may be per-formed
in this State in the presence of an ordained minister of any religious
denomination, minister authorized by his church, or of a justice of the
peace.
60 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
3 September 1963
Marriage; Chinese; Residence
There is no law in this State prohibiting the marriage of a Chinese resi-dent
to a white resident. It is not necessary to be a resident of North
Carolina in order to get married in this State.
2 January 1964
Marriage; Licenses; Correction of Mistakes in Name
Section 51-18.1 of the General Statutes authorizes the register of deeds
to correct errors as to names on applications for marriage licenses, mar-riage
licenses issued thereunder, and returns or certificates of officiating
officers.
3 June 1964
Marriage; Licenses; Failure to Return; Validity of Marriage
Unaffected
The validity of a marriage is not affected by the failure of the person
performing the ceremony to return the license to the Register of Deeds.
7 October 1963
Marriage; Out-of-State Marriage; N. C. Residents; Filing op
Certificate with a Register of Deeds
North Carolina residents who marry outside the State must, within 60
days after return to this State, file a certificate showing compliance with
the North Carolina statutes relating to premarital health examinations.
5 November 1963
Marriage; Parents' Consent; Which Parent
When a person of sixteen years of age and under eighteen is residing
with both his father and mother, the written consent of either parent fulfills
the statutory requirement of written consent.
24 June 1964
Marriage; Proxy Marriage; Not Authorized in North Carolina
North Carolina law does not authorize absentee or proxy marriage cere-monies
to be performed in this State.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 61
MERIT SYSTEM COUNCIL
7 August 1962
Merit System Council; Rule; Political Activity; Caseworker Elected
Member of Town Board of Aldermen in Non-Political Election;
Hatch Act
Neither the Federal statutes nor the Merit System Rule prohibits a per-son
employed under the Merit System from serving as a member of the
board of aldermen of a town where the election is nonpartisan and is not
related to political parties.
MILITIA
23 January 1964
Militia ; Six Months' Active Duty for Training; Applicability of
Soldiers' and Sailors' Civil Relief Act
The provisions of the Soldiers' and Sailors' Civil Relief Act of 1940
(50 U.S.C. App. §§501-548, 560-590) apply to a member of the Army
National Guard while he undergoes the required six-months' period of
active duty for training.
MOTOR VEHICLES
24 April 1963
Motor Vehicles ; Driver's License ; Chauffeurs ; Farmers Hauling Labor
Under G. S. 20-6 farmers hauling farm labor on trucks of over nine
passenger capacity are required to possess chauffeur's license.
28 November 1962
Motor Vehicles; Driver's License; Chauffeurs; Nonresident Employed
BY North Carolina Corporation
A nonresident chauffeur employed by a North Carolina corporation
would be required to possess a valid North Carolina chauffeur's license in
order to operate trucks of his employer over the highways of this State
notwithstanding the fact that such nonresident may possess a valid
chauffeur's license from his state of residence.
62 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
2 April 1963
Motor Vehicles; Driver's License; Driving While License Suspended;
FAILURE TO File Proof of Financial Responsibility Following Stated
Period of Suspension
A person Mrho operates a motor vehicle after the stated period of suspen-sion
of his license has expired but before filing proof of financial responsi-bility
would be chargeable under G. S. 20-28 (a) for driving while license
suspended. His punishment upon conviction of such offense would depend
upon whether or not his license had been reinstated by the Department
of Motor Vehicles following the stated period of suspension. If his license
had not been reinstated, he would be punishable as provided for persons
convicted of driving while license suspended. On the other hand, if his
license had been reinstated following the stated period of suspension and he
had failed to maintain financial responsibility subsequent to the loss of his
license for this cause, he would be punishable as for operating with no
operator's license.
12 March 1963
Motor Vehicles; Driver's License; Driving While License Suspended;
Penalty
A restoree of a suspended or revoked operator's license, within the con-templation
of G. S. 20-28, is a person whose license has been reinstated by
the Department of Motor Vehicles for some period of time following the
stated period of suspension contained in the suspension or revocation order
of the Commissioner of Motor Vehicles. Mere expiration of the stated period
of suspension contained in the Commissioner's suspension order does not
constitute such person a restoree.
25 September 1962
Motor Vehicles; Driver's License; Nonresident Operator's License;
Fifteen-Year-Old Minors
A minor fifteen years of age, even though properly licensed in his home
state, may not operate a motor vehicle on the highways of North Carolina.
27 September 1962
Motor Vehicles ; Driver's License ; Operation of Farm Tractor by Minor
A farm tractor is a "motor vehicle" as that term is defined in the Uniform
Driver's License Act and a person who permits an unlicensed minor to
operate a farm tractor contrary to the provisions of the Uniform Driver's
License Act would be in violation of G. S. 20-34.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 63
26 November 1962
Motor Vehicles; Driver's License; Resident Driving on Out-of-State
License
A resident of North Carolina may not operate a motor vehicle over the
highways of this State on an out-of-state driver's license even though such
operation may amount to only a small proportion of the total miles driven
by the North Carolina resident.
24 October 1963
Motor Vehicles; Engaging in Business as Motor Vehicle Dealer
An automobile rental agency, which places its own rental cars on its lot
for sale after it is determined that they need to replace them with newer
models for rental purposes, is not engaging in the sale of motor vehicles,
requiring the payment of a license privilege tax; neither does it subject
them to the Motor Vehicle Dealers Licensing Law. -
18 March 1963
Motor Vehicles; Interpretation of G. S. 20-158 (a) ; Stopping at a Stop
Sign and Yielding Right of Way
G. S. 20-158 (a) describes two offenses rather than two elements of the
same offense. The statute is violated where a motorist either fails to stop
at a stop sign or, having stopped, fails to yield right of way.
22 January 1963
Motor Vehicles; Municipal Regulations; Direction Signs at
Intersections
Direction signs Installed by local authorities pursuant to G. S. 20-153 (c)
must be authorized by ordinance of the local governing body in the same
manner as other traffic ordinances are adopted.
25 October 1963
Motor Vehicles; Operator of Motor Vehicle Having a Non-Owner's
Liability Policy; Owner Permitting Same to be Operated Without
Liability Insurance
A licensed operator of a motor vehicle who has a non-owner's liability
insurance policy does not violate any laws of this State by operating a
motor vehicle owned by another person and which vehicle is not covered
by liability insurance through the owner.
The owner of a motor vehicle, which is registered or required to be
registered in this State, who either operates or permits such motor vehicle
to be operated and does not have in full force and effect the financial
64 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
responsibility required by Article 13 of Chapter 20 of the General Statutes
of North Carolina would be guilty of violating G. S. 20-313 and subject
to punishment provided thereby.
A justice of the peace would not have jurisdiction to try any person
violating the provisions of G. S. 20-313.
18 June 1963
Motor Vehicles; Red Lights on Automobiles Owned by Members op
Rescue Squads
Use of red lights on privately owned automobiles of members of rescue
squads are prohibited and the operator of rescue squad trucks must comply
with speed restrictions and regulations.
9 March 1964
Motor Vehicles ; Registration ; Air Compressors and Welding Machines
Permanently Mounted on Wheels for Transporting From One Job to
Another
An air compressor or welding machine permanently mounted on wheels
for the transporting of same from one job to another is not subject to the
registration laws of Chapter 20 of the General Statutes of North Carolina,
unless the same is placed upon a trailer for such transportation, in which
event the trailer would be subject to registration.
24 August 1962
Motor Vehicles; Registration; Dealer's Tags
A person who operates a motor vehicle owned by a dealer and displaying
dealer tags for the purpose of road testing it must have in his possession a
permit from the dealer for a period not to exceed 96 hours, unless accom-panied
by the dealer or an employee of the dealer. Operation without the
permit is in violation of the motor vehicle registration laws, and a dealer
who knowingly permits such operation has himself violated the law.
5 July 1962
Motor Vehicles; Suspended Sentence; Suspension of License
A Recorder's Court Judge may as a condition of suspension of a sentence
prohibit the defendant from operating a motor vehicle for a reasonable
period of time.
37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 65
MUNICIPAL CORPORATIONS
7 May 1964
Municipal Corporations; Abandonment of Streets within Newly
Annexed Areas by the Highway Commission
The State Highway Commission under G. S. 136-66.2 (f) can abandon
streets which Avere not within municipalities or were not on the State
Highway System as of July 1, 1959, without the consent of the municipality.
29 May 1964
Municipal Corporations; Acquiring Property Outside Corporate Limits
FOR Public Park and Receational use
A municipality may accept property outside its corporate limits for
park purposes when said park is operated in a governmental capacity for
the direct benefit of the citizens of the m.unicipality.
31 July 1962
Municipal Corporations; Acquisition of Personal Property;
Lease With Option to Purchase
A municipality may acquire personal property by lease with option to
purchase.
19 August 1963
Municipal Corporations; Acquisition of Sewer Easement by Adverse
Possession
A municipality may acquire a sewage easement by prescription if it can
prove all elements necessary to be shown as in the case of the acquisition of
title to real property by adverse possession. The municipality must have
been in possession for a period of at least twenty years, unless otherwise
provided in the municipal charter, and must bear the burden of proving
that the user was adverse rather than permissive.
4 March 1963
Municipal Corporations; Ad Valorem Taxes; Penalty for Late Listing
The Machinery Act provides a penalty of 10% for late listing of property
for ad valorem taxes, with a minimum penalty of $1.00.
4 April 1963
Municipal Corporations; Amendment of City Charter; Construction
OF City Streets
G. S. 160-200, Subsection 11, gives a municipal corporation control over
the streets in the municipal corporation.
66 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
Article VII, Subsection 13 of the Constitution, states that the General
Assembly shall have control over the acts of a municipal corporation.
6 September 1962
Municipal Corporations; Appropriation from Nontax Funds for
Recreational Purposes; Purchase op Athletic Uniforms
A municipality may law^fully spend nontax funds to purchase athletic
uniforms for Little League ballplayers organized in the municipality.
30 October 1963
Municipal Corporations; Authority to Give, Sell or Lease Municipal
Property to Chamber of Commerce; Erection of Building Owned by
Chamber of Commerce on City Property
A municipality is not authorized to donate, sell or lease property held in
trust for the city or proprety devoted to a governmental use. A municipality
may not donate its property or grant privileges to one class of persons not
to be enjoyed by all except in consideration of public service.
26 September 1962
Municipal Corporations; Authority to Purchase Insurance in Mutual
Insurance Companies
Counties, municipalities, and boards of education may purchase insurance
in mutual insurance companies.
31 January 1964
Municipal Corporations; Barber Shops; Regulation of Hours
Municipalities have authority to regulate the hours which barber shops
operate.
15 May 1964
Municipal Corporations; Civil Defense; Authority of City Council op
High Point and the Civil Service Commission of High Point as it
Relates to the Local Director of Civil Defense
Pursuant to Chapter 166 of the North Carolina General Statutes, the
local governing body of a political subdivision has the authority to hire and
remove the local civil defense director and this authority shall not be
delegated to any commission or agency within the political subdivision.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 67
15 February 1964
Municipal Corporations; Constitutional Law; Validity of Ordinance
OF Chapel Hill Regulating Picketing
A town ordinance regulating the time, place and manner of picketing is
a valid regulation of the use of the streets of the Town under authority
delegated to the Board of Aldermen by the General Assembly; the ordi-nance
does not violate freedom of speech and assembly as guaranteed by the
First Amendment and made applicable to the States through the Fourteenth
Amendment; the Ordinance is neutral and does not discriminate against
persons or groups because of race, color or creed; the ordinance does not
violate the Equal Protection Clause or the Due Process Clause of the
Fourteenth Amendment.
2 December 1963
Municipal Corporations; Counties; Water and Sewage Services;
Joint Projects
Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment
of water and sewer lines jointly by towns and any county to
industrial plant sites located outside the municipal limits of a town.
31 July 1963
Municipal Corporations; Counties; Water Supply; No Authority in
County to Compel Fluoridation
A board of county commissioners has no authority to compel a muni-pality
to fluoridate its water supply.
s 12 July 1963
Municipal Corporations; Drainage Districts; Applicability of County
Fiscal Control Act
Under the provisions of G. S. 153-114 (a), the County Fiscal Control Act
is applicable to drainage districts.
7 May 1964
Municipal Corporations; Drainage Districts; Powers of Commissioners,
Authority to Permit Use op Dikes by Private Persons as Haulways
FOR Lumbering Operations
Commissioners of a drainage district have no authority to give permis-sion
to a private person to transport timber and timber products over a
dike constructed and maintained by the drainage district.
68 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
3 September 1962
Municipal Corporations; Easement for Sewer Lines; Compensation
FOR Easement; No Right to Furnish Free Sewer Service
A municipality does not have authority to agree to furnish a certain
property owner sewer service free for an indefinite period as compensation
for the sewer line easement across the property.
3 December 1963
Municipal Corporations; Eminent Domain; Sewerage and Waterworks;
Condemnation of School Property by a Municipality for Sewage
System Purposes
In the exercise of a general power of eminent domain, a municipality
may condemn lands belonging to a county school board where the lands are
not in actual public use or not needed for school purposes, provided that the
public use to be established thereon will not destroy the existing use of
the remainder of the tract or interfere with the existing use to such an
extent as is tantamount to a further taking or destruction.
4 January 1963
Municipal Corporations; Extension of Corporate Limits; Annexation
Proceedings
The new annexation proceedings statutes for municipalities enacted as
Chapters 1009 and 1010 of the Session Laws of 1959 were not prospectively
repealed by the provisions of Section 11 of both acts as immaterially
amended in 1961 regardless of the later codification of the two basic acts
as Parts 2 and 3 of Article 36 of Chapter 160 of the General Statutes as the
same appear in the 1961 Cumulative Supplement to Volume 3C.
5 September 1962
Municipal Corporations; Extension of Corporate Limits; Meaning of
Word "Contiguous"
An area to be annexed by a municipality, which is connected to the exist-ing
boundaries of the municipality merely by the right-of-way of a State
highway, is not "contiguous" to the municipality within the meaning of
G. S. 160-452.
5 December 1962
Municipal Corporations; Fire Districts; Extension of Limits
The mere extension of a city's fire district so as to include an area zoned
differently than the area within the existing fire district does not auto-matically
extend the zoning classification of the existing fire district into
the new area.
37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 69
5 March 1964
Municipal Corporations; Fire Protection; Contract With County;
Municipal Liability Outside City Limits
When a municipality authorizes its fire department to answer a call
outside the city limits, the city has the same privileges and immunities as
if a call were being answered within the city limits.
2 January 1963
Municipal Corporations; Governing Boards of Municipalities are
Required to Keep a Record of all Meetings
Governing bodies of municipalities, including town clerks, are required to
keep a full and accurate journal of all its proceedings, which journal shall
be open to public inspection. See G. S. 160-269.
17 August 1962
Municipal Corporations; Industrial Development; Appropriation of
Funds for Advertising Purposes
Unless a local law provides otherwise, a municipality does not have
authority to expend public funds to advertise the city and attract industry
except pursuant to the provisions of Chapter 158 of the General Statutes.
24 July 1963
Municipal Corporations; Jails; Contracts to House Prisoners of
Another Town
A municipality has implied authority to contract with another municipal-ity
for use of its jail facilities.
28 November 1962
Municipal Corporations; Jurisdiction; Regulation of Railroad
Crossings; Railroad Crossing Protection
Municipalities have jurisdiction over requiring safety devices at railroad
crossings not on the State highway system, but the Highway Commission
has exclusive jurisdiction in this regard where crossings are on the high-way
system.
23 May 1963
Municipal Corporations; Meetings of City Council; Open Sessions;
Live Broadcasting of Proceedings
Under the general laws of this State, meetings of a city governing body
must be open to the general public.
70 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
29 November 1962
Municipal Corporations; Municipal Police Officers; Arrest of
Violators Outside Municipal Limits
A municipal police officer in hot pursuit of a person found to be violat-ing
the liquor laws of this State may pursue such violator beyond the
municipal limits and arrest the violator. G. S. 18-45 (o).
11 July 1962
Municipal Corporations; Officers; Residence Requirements of Chief
OF Volunteer Fire Department and City Policeman
A fire chief of a municipal volunteer fire department and a city police-man
are public officers and must be residents of the municipality in which
they serve.
-
24 February 1964
Municipal Corporations; Ordinances; Authority op City Council to
Enact So-Called Public Accommodations Ordinance
A municipal corporation is not legally authorized to enact a public accom-modations
ordinance requiring the owner or operator of a hotel, motel,
restaurant or theater to admit persons to the use of his accommodations
and facilities regardless of race, color or creed; such an ordinance, if
enacted, would take away the individual choice of the owner or operator
and would be contrary to our trespass law (G. S. 14-134).
16 December 1963
Municipal Corporations; Ordinances; Subdivisions
An incorporated city or town which has been exempted from the pro-visions
of G. S. 160-226, et seq., pertaining to subdivision ordin